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ADDRESSES ON 
GOVERNMENT AND CITIZENSHIP 



BY 



ELIHU ROOT 



COLLECTED AND EDITED BY 

ROBERT BACON 

AND 

JAMES BROWN SCOTT 




CAMBRIDGE 
HARVARD UNIVERSITY PRESS 

LONDON: HUMPHREY MILFORD 
Oxford Univebsitt PaEaa 

1916 



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COPYRIGHT, 1916 
EARTABD UNIVERSITY PRESS 



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SEP 29 191.6 



ICI,A445222 
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CONTENTS 

PAGE 

Introductory Note vii 

THE CITIZEN'S PART IN GOVERNMENT .... 1 

Four Lectures delivered May 13, 14, 20, 21, 1907, at Yale 
University, under the William Earl Dodge Foundation. 

EXPERIMENTS IN GOVERNMENT AND THE 

ESSENTIALS OF THE CONSTITUTION .... 77 

The Stafford Little Lectures delivered at Princeton University, 
April 15 and 16, 1913. 

NEW YORK STATE CONSTITUTIONAL CONVEN- 
TIONS OF 1894 AND 1915 119 

Trial by Jury, July 17, 1894 121 

The Judiciary, August 20, 1894 125 

Sectarian Education, September 1,1894 137 

The Political Use of Money, September 3, 1894 . . . 141 

The Civil Service, September 21, 1894 145 

The Principles and Practice of Constitutional Re- 
vision 147 

An Address at a meeting of the Academy of Political Science, 
New York, November 19, 1914. 

The Business Men and the Constitutional Conven- 
tion 155 

An Address before the Merchants' Association of New York, 
March 25, 1915. 

Opening Address at the Convention, April 6, 1915 . . 163 

Magna Charta, June 15, 1915 169 

Impeachment, August 20, 1915 173 

-On Ending the Scandal of the Law's Delays, August 19, 

1915 177 

Courts of Justice for Small Causes, August 23, 1915 . 185 
The Regulation of Public Utilities and the Decline 

OF the " Black Horse Cavalry," August 25, 1915 187 



IV CONTENTS . 

" Invisible Government," August 30, 1915 191 

Speech on Closing the Convention, September 10, 1915 207 

A Study of the Proposed Constitution 213 

An Address at a dinner of the Republican Club of New York, 
October 18, 1915, 

The New York Constitution and Representative 

Government 227 

An Address before the Economic Club of New York, October 
25, 1915. 

GOVERNMENT 245 

Acceptance op the New York Senatorship 247 

An Address to the Legislature of New York, January 28, 1909. 

The Direct Election of United States Senators . . 257 
A Speech in the United States Senate, February 10, 1911. 

Second Speech on the Direct Election of Senators . . 285 
A brief Address delivered in the United States Senate, May 23, 
1911. 

The Case of Senator Lorimer 291 

An Address in the United States Senate, February 3, 1911. 

The Banking and Currency Bill 323 

An Address in the United States Senate, December 13, 1913. 

A Personal Statement 361 

Remarks in the United States Senate, December 16, 1913. 

How TO Preserve the Local Self-Government of the 

States 363 

A Speech at the dinner of the Pennsylvania Society in New 
York, December 12, 1906. 

Address at the Conference of the Governors of the 

States 371 

The Importance of Seeking Reform through State 

Governments 375 

Remarks at the tenth annual dinner of the National Civic 
Federation, New York, November 23, 1909. 

The Spirit of Self-Government 379 

An Address at the one hundred and forty-fourth anniversary 
banquet of the Chamber of Commerce of the State of New 
York, November 21, 1912. 



CONTENTS V 

The Arizona Constitution and the Recall of Judges 387 

A Speech in the United States Senate, August 7, 1911. 

The Recall of Judges 405 

Remarks in the Republican State Convention at Rochester, 
April 10, 1912. 

THE ADMINISTRATION OF JUSTICE 411 

Some Duties of American Lawyers to American Law . 413 
Commencement Address before the Yale Law School, New 
Haven, June 27, 1904. 

The Reform of Procedure 431 

Presidential Address at the Annual Meeting of the New York 
State Bar Association, Syracuse, January 19, 1911. 

Judicial Decisions and Public Feeling 445 

Presidential Address at the Annual Meeting of the New York 
State Bar Association, New York, January 19, 1912. 

The Independent Bar 463 

An Address at the Dinner of the New York State Bar Associa- 
tion, New York, January 20, 1912. 

Reforms in Judicial Procedure 467 

A Statement before the Committee on the Judiciary of the 
House of Representatives, February 27, 1914. 

The Layman's Criticism of the Lawyer 479 

An Address at the Annual Meeting of the American Bar 
Association, Washington, October 20, 1914. 

The Spirit Which Makes a Nation Live 499 

An Address at a Dinner of the American Bar Association, 
Washington, October 22, 1914. 

The Lawyer of Today 503 

An Address before the New York County Lawyers Association, 
New York, March 13, 1915. 

Individual Liberty and the Responsibility of the Bar 511 

An Address at the Annual Dinner of the New York State Bar 
Association, January 15, 1916. 

Public SER\acE by the Bar 519 

Address as President of the American Bar Association at the 
Annual Meeting in Chicago, August 30, 1916. 

Index 543 



INTRODUCTORY NOTE 

The collected addresses and state papers of Elihu Root, of 
which this is one of several volumes, cover the period of his 
service as Secretary of War, as Secretary of State, and as 
Senator of the United States, during which time, to use his 
own expression, his only client was his country. 

The many formal and occasional addresses and speeches, 
which will be found to be of a remarkably wide range, are 
followed by his state papers, such as the instructions to 
the American delegates to the Second Hague Peace Confer- 
ence and other diplomatic notes and documents, prepared 
by him as Secretary of State in the performance of his duties 
as an executive officer of the United States. Although the 
official documents have been kept separate from the other 
papers, this plan has been slightly modified in the volume 
devoted to the military and colonial policy of the United 
States, which includes those portions of his official reports as 
Secretary of War throwing light upon his public addresses and 
his general military policy. 

The addresses and speeches selected for publication are 
not arranged chronologically, but are classified in such a way 
that each volume contains addresses and speeches relating 
to a general subject and a common purpose. The addresses 
as president of the American Society of International Law 
show his treatment of international questions from the 
theoretical standpoint, and in the light of his experience as 
Secretary of War and as Secretary of State, unrestrained and 
uncontrolled by the limitations of official position, whereas 
his addresses on foreign affairs, delivered while Secretary of 
State or as United States Senator, discuss these questions 
under the reserve of official responsibility. 



viii INTRODUCTORY NOTE 

Mr. Root's addresses on government, citizenship, and 
legal procedure are a masterly exposition of the principles 
of the Constitution and of the government established by- 
it; of the duty of the citizen to understand the Constitu- 
tion and to conform his conduct to its requirements; and 
of the right of the people to reform or to amend the Con- 
stitution in order to make representative government more 
effective and responsive to their present and future needs. 
The addresses on law and its administration state how legal 
procedure should be modified and simplified in the interest 
of justice rather than in the supposed interest of the legal 
profession. 

The addresses delivered during the trip to South America 
and Mexico in 1906, and in the United States after his return, 
with their message of good will, proclaim a new doctrine — 
the Root doctrine — of kindly consideration and of honorable 
obhgation, and make clear the destiny common to the 
peoples of the Western World. 

The addresses and the reports on military and colonial 
poKcy made by Mr. Root as Secretary of War explain the 
reorganization of the army after the Spanish-American War, 
the creation of the General Staff, and the establishment of the 
Army War College. They trace the origin of and give the 
reason for the poKcy of this country in Cuba, the Philippines, 
and Porto Rico, devised and inaugurated by him. It is not 
generally known that the so-called Piatt Amendment, 
defining our relations to Cuba, was drafted by Mr. Root, and 
that the Organic Act of the Philippines was likewise the work 
of Mr. Root as Secretary of War. 

The argument before The Hague Tribunal in the North 
Atlantic Fisheries Case is a rare if not the only instance of a 
statesman appearing as chief counsel in an international 
arbitration, which, as Secretary of State, he had prepared 
and submitted. 



INTRODUCTORY NOTE ix 

The political, educational, historical, and commemorative 
speeches and addresses should make known to future genera- 
tions the literary, artistic, and emotional side of a statesman 
of our time, and the pubhcation of these collected addresses 
and state papers will, it is believed, enable the American 
people better to understand the generation in which Mr. Root 
has been a commanding figure and better to appreciate 
during his lifetime the services which he has rendered to 
his country. 

Robert Bacon. 

James Brown Scott. 
April 15, 1916. 



THE CITIZEN'S PART IN 
GOVERNMENT 



PREFATORY REMARKS 

Gentlemen of Yale University: 

In delivering the lectures of 1907 ^ on the responsibilities 
of citizenship, upon the foundation estabhshed by the late 
William Earl Dodge, I look back with pleasure to nearly 
forty years of friendship with Mr. Dodge, and to the example 
which his whole life gave of unselfish public spirit and of 
unremitting and intelligent effort for the welfare of his 
country and of his fellow-men. The establishment of this 
lectureship is but one of a multitude of acts which expressed 
his constant soUcitude for the welfare of others and his 
grateful appreciation of all the blessings he owed to the just 
and equal laws, the Hberty, and the opportunities of his 
country. His life was a better lesson in the responsibihty of 
Christian citizenship than any lecturer can put into words; 
for he did what we write about and he proved what we assert. 

It is my purpose to speak to you of your responsibihties 
regarding the government of your country and to discuss: 

1. The task inherited or assumed by members of the 
governing body in a democracy. 

2. The function of poKtical parties as agencies of the 
governing body. 

3. The duties of the citizen as a member of a pohtical party. 

4. The grounds for encouragement. 

* These lectures were delivered at Yale University, May 13, 14, 20, and 21, 1907, 
under the William Earl Dodge Foundation, and were published and copyrighted 
by the Yale University Press in that year under the title " The Citizen's Part 
in Government." The editors acknowledge the courtesy of the Yale University 
Press in permitting their republication, and take this method of expressing their 
appreciation. 



THE CITIZEN'S PART IN GOVERNMENT 



THE TASK INHERITED OR ASSUMED BY MEMBERS 
OF THE GOVERNING BODY IN A DEMOCRACY 

A LARGE part of mankind still regards government as 
something quite apart from the main business of life — 
something which is undoubtedly necessary to enable them to 
attend to their business, but only incidental or accessory to it. 
They plow and sow and harvest; they manufacture and buy 
and sell; they practice the professions and the arts; they write 
and preach; they work and they play, under a subconscious 
impression that government is something outside all this 
real business — a function to be performed by some one else 
with whom they have little or no concern, as the janitor of 
an apartment house, whom somebody or other has hired to 
keep out thieves and keep the furnace running. In reality, 
government is an essential part in every act of all this wide 
range of human activity. If it is bad, ruin comes to all; if 
it is good, success comes according to capacity and courage. 
The fairest and most fertile parts of the earth have been for 
centuries wilderness and desert because of bad government; 
not only lands capable of supporting multitudes in comfort 
and prosperity, but lands that have actually done so in the 
past, are today filled with wretchedness and squalor, with 
ignorance and vice, because of bad government; while under 
good government industry and comfort flourish on the most 
sterile soil and under the most rigorous climate. 

The proportional part played by government in the per- 
sonal affairs of every individual life is rapidly increasing. The 
crowding and complications, the inventions and improve- 



4 GOVERNMENT AND CITIZENSHIP 

ments and cooperation of modern life have enormously in- 
creased the dependence of men upon each other. A century 
ago the farmers, who made up the bulk of the people of the 
United States, were quite independent in their comparatively 
isolated hves and with their few wants. I can recaU a picture 
drawn by one who remembered the life of that time upon a 
farm familiar to my childhood. He said: 

We had abundance of food and clotliing; we raised our own wheat and 
com, which were ground into flour and meal at a neighboring mill for a 
share of the grain; we raised all the beef and pork and vegetables that we 
required; we raised sheep and sheared them, and carded and spun and 
wove the cloth for our winter clothing; we raised flax and from it made our 
own linen; we dipped our own candles, which afforded sufficient artificial 
light for a hfe in which it was the rule to rise with daylight and go to bed 
when it was dark; we had milk from our own cows, eggs from our own 
fowls and abundant firewood from our own forest. We had everything 
we needed except money and we had Uttle need for that; the chief occa- 
sion for its use was to pay the smaU taxes which were required each year. 
There was little money in the community and it was sometimes hard to 
get enough to meet the taxes. 

Under such conditions, government might well have been 
regarded as an outside affair, of which the less people heard 
the better. 

Compare such a life with that of a resident in one of the 
cities, in which a third of the population of the United States 
are now crowded together. The city family is dependent for 
every article of food and clothing upon the products of far- 
distant places. These products are supplied through great 
and complicated agencies of transportation, and for the most 
part have been prepared for use by a variety of distant mills 
and factories. The family depends upon fuel brought from 
distant coal mines; its light comes from gas and electrical 
plants over which it has no control; the habits of business 
and social life are all adjusted to means of communication 
furnished by great telegraph and telephone companies and a 
government postal service. It exercises no control at all 



THE CITIZEN'S PART IN GOVERNMENT 5 

over the things that are absolutely necessary to its daily life. 
A strike in the coal mines, like that which occurred in 
Pennsylvania five years ago, may at any time put out not 
only the furnace but the kitchen fire; a strike in the lighting 
plants, like that which happened in Paris a few weeks ago, 
may plunge the house and the neighborhood into darkness. 
A quarrel between railroad companies and their employees, 
or the inability of a railroad company to furnish sufficient 
transportation, may cut off the most necessary supplies; 
the meat is liable to be diseased unless some one inspects the 
packing-house, the name and place of which no one in the 
family knows. The milk may be full of tuberculosis and 
the water full of typhoid germs unless some one has tested 
the cattle and some one enforced sanitary ordinances upon 
distant farms. Access to the house depends upon a street 
department, safety from thieves upon a police force, and 
freedom from pestilence upon the sanitary disposal of the 
sewage of thousands of other families. Under these circum- 
stances of complete interdependence, the individual is 
entirely helpless. The only way in which he can compel the 
continuance of conditions under which he and his family 
can go on living is by combination with others equally 
dependent with himself, and by organization for whatever 
control over those conditions is necessary. That combination 
and organization is government. 

Men may leave all this part of the business of life to others 
and treat it as no concern of theirs; men may voluntarily 
elect to play no part in the control of the affairs which make 
up their daily life and to play no part in the working out of 
the great questions upon which the prosperity of their 
country, the future of their children, and the welfare of the 
race depend; but they need not flatter themselves that these 
things are matters apart from them, or that they are leading 
free and independent lives. Abstention is impossible under 



6 GOVERNMENT ANT) CITIZENSHIP 

the conditions of modern life and modem popular govern- 
ment. Men must either govern or be governed; they must 
take part in the control of their own lives, or they must lead 
subject lives, helplessly dependent in the little things and 
great things of life upon the will and power of others. 

The theory and practice of government have vastly 
changed within the past few centuries and especially 
within the last century and a half. Control by superior 
authority, claiming by divine right, selected by inherit- 
ance, and supported by a comparatively small governing 
class selected in the same way was repressive and directive. 
Government was then apart from the main and general 
activities of life, but it was apart from them by being above 
them, by exercising rights over them and making them all 
pay tribute. Under our modern systems of popular govern- 
ment the repressive function still continues, but entirely 
new and different modes of action have been developed. The 
repression is self -repression, and the direction is the resultant 
of internal forces determining the character of the directed 
mass. Popular government is organized self-control — 
organized capacity for the development of the race. It is 
the good and noble impulses and the selfish and cruel passions 
of man struggling with each other for the maintenance or 
the denial of justice; it is the lust for power and savage 
instinct for oppression struggling against manhood and self- 
respect for the maintenance or destruction of Kberty; it is 
the greed and cunning that have shamed the history of the 
world struggling with honesty and virtue for public purity; 
it is the longing in the heart of man for better things up 
through education to broader knowledge and higher life; it 
is the vast elemental forces of humanity moving great masses 
of men in violent protest against the ills of life, to the 
destruction of social order; it is the instinct of self-preserva- 
tion which rallies other multitudes in defense of vested 



THE CITIZEN'S PART IN GOVERNMENT 7 

interests and traditional rights; it is the dreams of Utopia 
to be reaUzed by changing everything and the reverence for 
the past that is horrified by changing anything. These 
tremendous forces express themselves in laws, in the enforce- 
ment of laws, in contempt for laws, in good administration 
and bad administration, in sudden outbursts of feeling alter- 
ing the surface of things, and in gradual movements afiFecting 
the whole relation of nations toward the ideals of peace and 
order and justice and righteousness. Upon them and the 
results they work out depend the prosperity, and honor and 
life of nations, and the future of civilization; and upon them 
depends the value of every farm and factory and shop, of every 
bond and share of stock, the peaceful prosperity of every home, 
the opportunities for success of every child. 

Heavy responsibilities were assumed and serious dangers 
were confronted in departing from the theory that govern- 
ment must come from above, that the selfishness and cruelty 
and lust of mankind can be successfully controlled only by 
a class of superior men, by a small number of specially quali- 
fied experts in the art of government bred to power and 
trained in its exercise; and in adopting the idea that the 
great masses of men, who had always been subject to repres- 
sion, control, and direction, could be trusted to govern them- 
selves without any superior control; that by a process of ^ 
evolution, through education and practice, the popular mass ! 
would acquire the self-restraint, the soberness of judgment, / 
the loyalty to the fundamental principles of justice and / 
liberty necessary to stable and effective government. The 
new departure was regarded by many of the wisest and best 
of mankind with the most gloomy forebodings. There was 
widespread belief that when political power was vested in 
the poor they would promptly proceed to divide among 
themselves the property of the rich, and that the control of 
democracy would prove to be the tyranny of the mob — the 



^ 



8 GOVERNMENT AND CITIZENSHIP 

most frightful form of oppression mankind has yet known. 
Jack Cade and Wat Tyler rebellions, peasant insmrections, 
the Red Terror of the French Revolution, the excesses of the 
Commune of Paris, the reign of assassination in Russia, the 
Jacquerie in Roumania, the perpetual revolutions of unde- 
veloped Latin-America, have seemed to give color to these 
anticipations. 

We have been accustomed to flatter ourselves that the 
great American experiment has been successful. It has 
indeed carried the demonstration of popular capacity of the 
people to rule themselves far beyond the point which origi- 
nally seemed possible to the enemies of popular government. 
That demonstration has produced an effect upon the con- 
stitution of government throughout the civilized world by 
the side of which the Roman dominion sinks to an inferior 
place as a permanent force. Under its influence the whole 
continent of South America took heart and gathered courage 
to throw off the hard colonial yoke which held its people 
under the subjection of the Iberian Peninsula, and, passing 
through the storms of internal strife and continual revolu- 
tion, is gradually emerging into a condition of peaceful 
industriahsm. Its influence reacted upon France and 
requited her assistance in the cause of our independence, by 
furnishing proof of the possibilities of humanity to her 
poHtical philosophers. It inspired the hope that led to the 
tempestuous revolt against the French Monarchy, which, 
through many vicissitudes, has resulted in the French Repub- 
Hc, now for more than a third of a century stable in its 
peaceful sway. Its example reacted upon England in the 
series of reforms which began with the Reform Bill of 1832 
and enabled that conservative people to impress upon their 
ancient monarchy the essentials of a real government by the 
people, in which justice and Hberty are preserved in a very 
high degree. 



THE CITIZEN'S PART IN GOVERNMENT 9 

The fact that for more than a century peaceful industry, 
respect for law, and individual freedom have been maintained 
under popular government in the United States, and that 
they have been accompanied by extraordinary material 
prosperity, has fostered a tendency toward popular govern- 
ment in every country of Europe. 

Nevertheless, we must not delude ourselves with the idea 
that the American experiment in government is ended or that 
our task is accomplished. Our political system has proved 
successful under simple conditions. It still remains to be 
seen how it will stand the strain of the vast complication 
of life upon which we are now entering. 

Notwithstanding the change in the source of power, which 
has been the fundamental fact in the development of popular 
government, that government has proceeded hitherto with 
much respect for inherited governmental traditions and 
methods. The old machinery for the application of govern- 
mental power to the life of the community has been in a 
great measure preserved. Legislative bodies have made 
laws, and courts have sat in judgment under them and execu- 
tives have enforced them, under authority derived from the 
people, very much as they did under authority derived from 
a superior power, except that the spirit has been different 
and the responsibility has been different. It remains to be 
seen whether democracies will be willing to continue these 
methods of government, or whether, with their continually 
increasing realization of their own power, they will change 
the old methods of government along such lines as are fore- 
shadowed by the proposals for the initiative and the referen- 
dum — proposals that would substitute direct democratic 
action for representative government, as representative 
government was substituted for absolute monarchical con- 
trol; and it remains to be seen what the effect of that kind 
of government would be. 



10 GOVERNMENT AND CITIZENSHIP 

Notwithstanding the great change at the top involved in 
the setting aside of monarchical and aristocratic government 
in modern repubhcs, the substance of the old social system, 
with its respect for the rights of private property, has been 
preserved. Modern democracy has simply engrafted upon 
that system an assertion of the right of equal individual 
opportunity, so that no barrier of birth or caste or privilege 
shall stand between any man and whatever career his ability 
and industry and courage entitle him to achieve. The very 
basis of that social system is now widely questioned. Social- 
ists, in no neghgible numbers, demand a reorganization of 
society upon entirely different principles; hmitations upon 
the right of private property are widely favored; and limita- 
tions upon individual opportunity are stUl more widely 
enforced among all that part of the wage- workers who believe 
in putting a Hmit upon the amount of work which each work- 
man shall be permitted to do in his day's labor, so that the 
most industrious, skillful, and ambitious workman shall be 
permitted to do no more and to earn no more than the most 
dull, idle, and indifferent workman. A common benefit of 
property and a common standard of exertion are liable to be 
substituted for all inequahties of fortune and achievement. 
After many centuries of struggle for the right of equality 
there is some reason to think that mankind is now enter- 
ing upon a struggle for the right of inequahty. It remains 
to be seen how democracy will work under these new con- 
ditions. 

One thing we have learned during the experience of popular 
government is that the progress of the world has carried 
civilized people to a point where we are not now voluntarily 
trying the experiment of government by self-control, but 
where society must rely upon that and cannot possibly go 
back to the old method of keeping peace by force or the 
threat of force. The complication and interdependence of 



THE CITIZEN'S PART IN GOVERNMENT 11 

life puts the power of doing incalculable harm in the hands 
of so many men and combinations of men in different occu- 
pations that a realization of common interest is absolutely 
essential to the working of the vast machine. The mere 
forcible enforcement of law is quite inadequate. It is not 
fear of the policeman or the sheriff that keeps the peace in 
our many cities; it is the self-control of the millions of 
inhabitants enabling them to conform their lives to the rules 
of conduct necessary to the common interest; it is only 
against the exceptional lawbreaker, and criminals who are 
comparatively few in number, that the policeman and sheriff 
are effective. 

Another thing we have learned is that it is possible for 
men to set up abstract and impersonal standards of right 
conduct, such as the great rules of right embodied in our 
constitutions, and that, although each man in his own 
personal affairs tends to depart from the standard and 
struggle against its application to himself, the general agree- 
ment of all who do not at the time happen to have any 
adverse interest is competent to maintain the standard in 
force and effect; so that all men may give their adherence 
and support to standards of conduct ethically superior to 
the course which the vast majority of them desire to take 
in their own affairs. 

Another lesson the experience of popular government has 
already made plain is that the art of self-government does not 
come to men by nature. It has to be learned; facility in it 
has to be acquired by practice. The process is long and 
laborious; for it is not merely a matter of intellectual appre- 
ciation, but chiefly of development of character. At the 
base of all popular government lies individual self-control; 
and that requires both intelligence, so that the true relation 
of things may be perceived, and also the moral qualities 
which make possible patience, kindly consideration for 



V 



12 GOVERNMENT AND CITIZENSHIP 

others, a willingness to do justice, a sense of honorable obli- 
gation, and capacity for loyalty to certain ideals. Men must 
be willing to sacrifice something of their own apparent indi- 
vidual interests for the larger interests of city, state, country; 
and without that willingness successful popular government 
is impossible. This loyalty to an abstract conception is a 
matter of growth. It is easy to trace its development in our 
own country from the time when local allegiance was pre- 
dominant to the time when national allegiance has become 
u predominant. Intense devotion to the state is one of the 
great elements of strength in the Japanese nation now; it 
was one of the chief elements in the growth of Roman power. 
It cannot be produced except by a long-continued habit of 
effort and sacrifice in a common interest. It is this gradually 
acquired loyalty to country more than anything else that 
enables men to exercise the self-control necessary to the 
subordination of the narrower personal interests to broader 
general interests, upon which self-government depends. The 
individual selfishness which fills men with a controlling desire 
for personal aggrandizement, to the exclusion of any con- 
sideration for the general good, marks a low stage in the 
political development of every country that has a history; 
and the bitterness of internal dissension which leads the 
adherents of particular opinions or interests to insist upon 
them at the cost of ruin and death to adherents of opposing 
views in the same country must in its turn give way to the 
conception of the higher loyalty before there can be really 
successful popular government. There must be both the 
habit of self-control and the dominating influence of the 
common ideal to enable men so to act together, subordinating 
minor differences of interest and opinion, as to make popular 
government possible. 

The countries in which the people are continually engaged 
in internal quarrels never progress. History is full of such 



THE CITIZEN'S PART IN GOVERNMENT 13 

examples. Some races appear to be incapable of combining 
in the support of a common political ideal beyond a certain 
point. The races that have this capacity to the highest 
degree persist and rule the world; the peoples that have it to 
a low degree lose their national entity and cease to govern. 
There are many countries now where controversy regarding 
matters of inferior importance is a present bar to progress. 
In every living nation the question always remains, How 
far has it capacity to go in that kind of combined action 
which subordinates individual interests, the interests of 
groups and localities and classes, to the general good of the 
country ? That limit must be found in the capacity for 
development of the individual characters that make up the 
nation. 

The Greeks appeared to be unable to maintain any 
effective combination beyond the individual city; the idea 
of a Hellenic country acquired no control over their lives. 
When the supreme moments were passed in which they 
united to repel the Persian invasions, they immediately fell 
apart and resumed their quarreling with each other. The 
Peloponnesian and Delian Confederacies, which might as 
well have been the foundations of a common country as the 
confederation of the American colonies, served merely as 
opportunities for the selfish advantage of Sparta and of 
Athens. So Greece, with all its glories of art and literature 
and oratory, went down before nations of inferior intellectual 
capacity — first the Macedonians and then the Romans. 
The long period during which internal strife has prevailed in 
the Latin- American countries has been an illustration of the 
struggle between the capacity for self-control in a common 
national interest and the forces of selfish individualism and 
factionalism. The major part of those countries are now 
happily emerging from the stage of militarism and the con- 
dition of continual revolution into the stage of industrialism 



14 GOVERNMENT AND CITIZENSHIP 

and stable government; but in some of them on the borders 
of the Caribbean the struggle is still waged and the result is 
in doubt. The discord between the thirteen American states 
and the practical paralysis of the Continental Government 
before the Constitution of 1787 illustrates the failure to attain 
this necessary condition; and the union of the same states 
under the Constitution illustrates success. The downfall of 
the once powerful Kingdom of Poland illustrates the triumph 
of those discordant motives which make successful govern- 
ment impossible. United Italy and Germany; the stabihty 
which the French RepubHc has maintained for a third of a 
century after so long a period of tumult and discord; the 
unbroken bonds that unite Great Britain with her colonies; 
and the permanence of the American Union, mark the great 
advances of which civilized men generally have proved them- 
selves capable, in applying the principles of combination for 
a common national interest. No one can teU, however, when 
or where the great new forces which are being developed in 
the course of government by the people, and especially in the 
relations between industrial and social changes and the poHt- 
ical constitution of government, will overcome the power of 
common and patriotic purpose that makes possible combined 
national action 

Our country is not safe in leaving unused any possible 
influence and effort toward the maintenance and growth of 
patriotic ideaHsm and practical loyalty. 

There are probably few readers of history who do not ask 
themselves the question whether the civilization of our time 
is to pass through its cycle of development and decay, yield 
to the disintegrating passions of human nature, and leave the 
world to begin the process again as it has so often done. Is 
the New Zealander indeed to stand on the ruins of London 
Bridge ? The question that Macaulay asks still remains to 
be answered: 



THE CITIZEN'S PART IN GOVERNMENT 15 

Is it possible that in the bosom of civilization itself may be engendered 
the malady which shall destroy it ? Is it possible that institutions may 
be established which, without the help of earthquake, of famine, of pesti- 
lence, or of the foreign sword, may undo the work of so many ages of 
wisdom and glory, and gradually sweep away taste, literature, science, 
commerce, manufactures, everything but the rude arts necessary to the 
support of animal life ? Is it possible that, in two or three hundred years, 
a few lean and half-naked fishermen may divide with owls and foxes the 
ruins of the greatest European cities — may wash their nets amidst the 
relics of her gigantic docks, and build their huts out of the capitals of her 
stately cathedrals ? ^ 

Is some future poet to sing of us that " the lion and the 
Hzard keep the courts where Jamshyd gloried and drank 
deep " ? If not, I think the difference must be found in the 
fact that popular government carries our civilization down 
to the foundations of society and spreads it so widely over 
the surface of the earth. Former civilizations were but 
islands surrounded by vast regions where savagery ruled; 
and they were but civilizations at the top, underlaid by the 
ignorance and prejudice of a multitude who had no interest 
in preserving what such civilization had gained, no capacity 
to appreciate its merits, and but little contribution to make 
toward its increase. They were the civilizations of privileged 
classes, which always tend toward degeneration. The hope 
for the permanence of modern civilization is that it is being 
built up from the bottom through the participation of the 
whole people in that universal, combined action for the 
common good which we call popular government. 

It may seem that I have ascribed a part to government 
which properly belongs to the development of morals and 
the spread of education; but I think a Httle reflection will 
show that this is not so. Morals do not develop in the 
abstract, but in the gradual adaptation of conduct to rules 
already intellectually accepted. The conduct to be adapted 
is conduct toward other real living beings. Even in the 

* Mill's Essay on Government. Macaulay in Edinburgh Review, 1829. 



16 GOVERNMENT AND CITIZENSHIP 

purely personal relations government plays a leading part in 
directing conduct, as in the changing rules of law regarding 
the rights and duties of owner and slave, master and ser- 
vant, employer and laborer, parent and child, guardian and 
ward; but in the great field of the relations of men to each 
other in the mass the whole development of morals practi- 
cally is governmental. The words Hberty, justice, order, 
peace, protection of the weak, pubhc purity, pubHc spirit, 
denote the application of certain moral ideas to the conduct 
of men in mass toward their fellow-men. The tremendous 
power of a people become sovereign and the helpless depend- 
ence of modern men upon each other make this phase of 
development of morals of primary and vital importance. It 
is the conversion of moral rules into poKtical conduct that 
concerns government, and that is a process of practical 
experimental life working out results acceptable to a majority 
and then enforced by them upon the minority. This process 
is not much furthered by mere insistence upon the rules, or 
by academic discussion of them, for in successive generations 
the same accepted moral rules are translated into entirely 
different conduct, and it is the translation which is of vital 
importance. 

If we turn to education, we find that instead of this being 
a thing apart, the education which enables the great body of 
democracy to work out the problems I have described — the 
primary education, which opens the door of knowledge to 
the mass and the door of unlimited opportunity to the 
exceptional inteUigence — is almost universally suppHed by 
government as a part of the poHtical qualification for citizen- 
ship. On the other hand, it is very doubtful whether the 
higher academic education contributes much to capacity for 
political usefulness. As a rule, poHtical wisdom, in the best 
sense, comes in life and not in study, and the tendency of 
highly educated men to neglect all political duties is unfor- 



THE CITIZEN'S PART IN GOVERNMENT 17 

tunately too general. It is the process of government that 
educates for government. It is experience and observation 
of the working of laws and political practices and injurious 
customs that point the way to intelligent legislation. The 
factory inspectors in the state of New York inspected over 
thirty-eight thousand separate factories last year. Those 
inspections and the reports and the discussions on them 
are education through which the thirty-eight thousand 
employers and the million and odd employees and the com- 
munity which controls them both, may come to a sense of 
just how the balance ought to be held between the employer's 
rights of property and free contract, on one hand, and the 
employee's freedom from the slavery of circumstance, and 
the state's right to have normal, healthy citizens, on the 
other. 

The greatest, most useful educational process ever known 
in the world occurs every four years in the United States 
when, during a presidential election, some fifteen million 
voters are engaged for months in reading and hearing about 
great and difficult questions of government, in studying 
them, in considering, and discussing, and forming matured 
opinions about them. We sometimes hear complaints that 
elections interfere with business and come too frequently. 
On the contrary, nothing else is so valuable and important 
for business, because it is this educational process that is 
laying the solid foundation of sound judgment, sober self- 
restraint, and familiarity with political questions among the 
governing mass, upon which the security of all business 
depends. 

Doubtless there have been abuses in raising and applying 
campaign funds; but, in the main, there is no more useful 
expenditure of money from the public point of view than 
this, which in the last presidential election, according to 
official statements, amounted to only about three and a half 



18 GOVERNMENT AND CITIZENSHIP 

cents per capita for the people of the United States, on one 
side, and probably somewhat less on the other; for the great 
bulk of it is appHed to the political education of voters. 

Everything that I have said about the relations of govern- 
ment to our modem life — the character of popular govern- 
ment, its difficulties, its dangers, its possibilities, its mode of 
life and growth — carries, as a necessary corollary, the exis- 
tence of a universal duty of citizenship to take part in it. It 
is not rightly a matter of choice whether a man shall trouble 
himself about affairs of government in his community, or 
confine himself to his business, his profession, or his pleasures, 
and leave others to govern; it is a matter of peremptory 
obligation which cannot be avoided by any intelligent man 
who has any understanding of the conditions under which 
he Kves. A French nobleman could attend the court of 
Louis XIV, or retire to his castle, as he chose, without dis- 
credit; for under that system of government the question 
was whether certain men or certain other men conducted the 
government. The essential feature of the present condition 
is that the burden and duty of government rest upon all 
men, and no man can retire to his business or his pleasures 
and ignore his right to share in government without shirking 
a duty. The experiment of popular government cannot be 
successful unless the citizens of a country generally take part 
in the government. There is no man free from the responsi- 
bility; that responsibility is exactly proportioned to each 
man's capacity — to his education, to his experience in life, 
to his disinterestedness, to his capacity for leadership — in 
brief, to his equipment for effective action in the great 
struggle that is continually going on to determine the pre- 
ponderance of good and bad forces in government, and upon 
the issue of which depend results so momentous to himseff, 
his family, his children, his country, and mankind. The 
selfish men who have special interests to subserve are going 



THE CITIZEN'S PART IN GOVERNMENT 19 

to take part; the bitter and malevolent and prejudiced men 
whose hearts are filled with hatred are going to take part; 
the corrupt men who want to make something out of govern- 
ment are going to take part; the demagogues who wish to 
attain place and power through pandering to the prejudices 
of their fellows are going to take part. The forces of un- 
selfishness, of self-control, of justice, of public spirit, public 
honesty, love of country, are set over against them; and 
those forces need every possible contribution of personality 
and power among men, or they will go down in the irrepres- 
sible conflict. The scheme of popular government upon 
which so much depends cannot be worked successfully unless 
the great body of such men as are now in this room do their 
share; and no one of us can fail to do his share without for- 
feiting something of his title to self-respect. 



20 GOVERNMENT AND CITIZENSHIP 



II 

THE FUNCTION OF POLITICAL PARTIES AS 
AGENCIES OF THE GOVERNING BODY 

We have now reached a pomt where the question is naturally 
suggested: How should the citizen take part in the govern- 
ment of his country ? Given a young American who has just 
completed his academic training and is about to begin his 
active life, and who wishes to do his full duty as a citizen in 
maintaining and improving his government: where is he to 
begin and what is he to do ? 

On the threshold of the answer to this question we must 
determine that the duty will not be fulfilled merely by play- 
ing the role of a critical observer of what others do. It is 
indeed important that there should be criticism; no pubhc 
officer can afford to be reheved from it. Every man in the 
performance of public duty tends to lose his sense of pro- 
portion by seeing things from only one point of view, and 
tends to devote himself unduly to some phases of his work, 
which preoccupy his mind, so that he neglects other things 
which ought to have his attention. Every one makes mis- 
takes, and the sooner he is told of them the better; and 
every one who is obliged to withstand the pressure which 
conflicting interests bring to bear upon the performance of 
his duty finds in the certainty of criticism a powerful incen- 
tive to be sure that his action is such that he can defend it 
afterwards according to his own convictions of right. Criti- 
cism tests and corrects the opinions and the practices of the 
men who are doing the work of the world. 

Nevertheless, to criticise is not to do the work. The 
preservation and development of civilization require affirma- 
tive forces; the real work of life is constructive; criticism is 
destructive. 



THE CITIZEN'S PART IN GOVERNMENT 21 

It is, moreover, true that the most valuable criticism 
comes from the men who are also undertaking to do things 
themselves. Criticism always involves comparison with 
some standard assumed in the critic's mind; and the value 
of the criticism depends largely on the conformity of that 
standard to the real conditions under which the work 
criticised is done. The critic of government who is himself 
trying to do his share of the affirmative work of government 
is in the way of learning something of the evils against which 
other men engaged in government are struggling, the diffi- 
culties they have to overcome, the means they have at their 
command with which to overcome those difficulties, and the 
real as distinguished from the apparent value of what they 
do. Criticism from such a source is a real benefit. The mere 
critic of government, however, who does not himself attend 
to his share in the affirmative work of government, ordinarily 
adopts standards of comparison which ignore the most 
important elements of truth, and he is quite likely to do more 
harm than good; he gradually assumes an attitude purely 
destructive and acquires a habit of simple fault-finding. 
Such a man is generally a hindrance rather than a help to 
the work of good government. 

It is equally plain that for most men preaching to others 
about what they ought to do is not a very effective way of 
helping along the work of government. Mankind does not 
pay much attention to people who talk down at them from 
without about their duties, unless the instruction comes from 
some one who is already recognized by his own performance 
as having acquired the right to be considered a teacher. 
Occasionally a man has some message to deliver of such 
weight and cogency as to impress itself upon many other 
minds; but such men are very rare and very far removed 
from the ordinary run of men. If any one can express as 
much wisdom as President Eliot has put into some of his 



22 GOVERNMENT AND CITIZENSHIP 

addresses, or can write such a book as President Hadley's 
Freedom and Responsibility, or such a book as James Bryce's 
American Commonwealth, or John Morley's Life of Gladstone, 
or can compose such orations as Edmund Burke's, he can 
make a real contribution to the science, and therefore to the 
practice, of government. But for the generahty of us whose 
knowledge and insight are not much, if any, superior to those 
of the great body of our fellows, it is wise to wait until we 
have at least greater experience than they have in the things 
we undertake to talk about, before we try to play the school- 
master to them. 

There are many people whose idea of duty is to assign 
duties to others, but for the most part their efforts are a 
mere waste of words. Mr. Murat Halstead once told me 
how, being a young newspaper correspondent during the 
Civil War, he had felt moved to write a long letter to Secre- 
tary Stanton, giving his view about the matters in which the 
Secretary was engaged, and how, many years afterwards, 
this letter was found on the files of the War Department 
indorsed, in Stanton's own handwriting, " M. Halstead — 
Tells how the war ought to be carried on." At the time of 
our conversation, a long and ripe experience had taught the 
veteran journalist the true character of his youthful under- 
taking; and he remarked that this indorsement was the 
only evidence he had ever known that Stanton possessed 
real humor. The world is full of men ready to teU how the 
war ought to be carried on by others; but the war goes 
on just the same, and the men who bear the burden and 
heat of the struggle in actual service accomphsh the results, 
and their self-constituted and little-qualified advisers have 
really no substantial part in the business. 

It is plain that the true way to begin an active part in the 
affairs of government is not by being elected or appointed to 
office; that should always be a result rather than a beginning 



THE CITIZEN'S PART IN GOVERNMENT 23 

of interest, activity, experience, and proved capacity in the 
affairs of government. This is especially true of the greater 
offices. As to the smaller offices, especially those which 
occupy the entire time of the officer, it is often very undesir- 
able for a young man of education and good parts to abandon 
his profession or business or whatever calling he would 
naturally follow to fill one of them. There are very few 
public offices in comparison with the number of citizens, 
and at the best only a very small part of the young men of 
the country could enter into active governmental work by 
holding them. 

Of course, voting is a fundamental and essential part of 
the qualified citizen's duty to the government of his country. 
The man who does not think it worth while to exercise his 
right to vote for public officers, and on such public questions 
as are submitted to the voters, is strangely ignorant of the 
real basis of all the prosperity that he has or hopes for, and 
of the real duty which rests upon him as a matter of ele- 
mentary morals; while the man who will not take the trouble 
to vote is a poor-spirited fellow, willing to live on the labors 
of others and to shirk the honorable obligation to do his 
share in return. 

Merely voting, however, is a very small part of the political 
activity necessary to popular government. An election is 
only the final step of a long process by which the character 
of government is determined. The election records the 
result of the process; the real work of government is in the 
process. 

The voter ordinarily has merely a choice between two or 
three candidates for an office, no one of whom may be the 
man whom he would prefer for the office; or he has the oppor- 
tunity to say yes or no to some question framed in advance, 
and very likely framed in such a way that neither yes nor 
no would represent his real opinion upon the subject or 



24 GOVERNMENT AND CITIZENSHIP 

lead to what he would regard as a satisfactory result. Of 
course our election laws preserve the theoretical right of 
each voter to cast his vote for any one whom he chooses; but 
we all know that if the voter exercises that right for some one 
other than a foreordained candidate his ballot goes into the 
category of scattering votes and is practically thrown away. 
The same thing which is true as to the limitation of the 
voter to particular candidates is true also of the issues or 
opinions those candidates are supposed to represent. The 
issues are all made up before the voter goes to the polls. 
You and I may feel a desire to express an opinion by our 
ballots on the revision of the tariff, or on free trade and pro- 
tection, or on the regulation of railroads, or on the prevention 
of trusts, or on the method of taxation, or on economy and 
honesty of administration, or on the currency and banking 
system, or on the control of insurance companies, or on the 
powers of corporations, or on the open shop, or on the 
foreign pohcy of the country; but when we go to the polls 
merely as voters we are entirely helpless as to determining 
upon what question our votes will count, and ordinarily as 
to which way they will count upon many of the questions in 
which we are interested. The questions on one side or the 
other of which our votes will weigh, have all been selected 
and brought into prominence long before the election. The 
result of this is to limit the effect of our votes to certain 
narrow channels. The issues as finally framed may not be 
those we think most important, and the relation of the 
candidates to them may be such that we cannot help one 
cause by our vote without hurting another iq which we are 
equally interested. The men who are elected to office give 
practical effect when in office to the results of that previous 
process recorded in the canvass of votes. Thus, the chief 
work of popular government is to be found in the process 
which results in the vote. 



THE CITIZEN'S PART IN GOVERNMENT 25 

Under our present political system in the United States 
and at our present stage of political development, that 
process is mainly carried on through the organizations known 
as political parties. 

Manifestly, there must be organization; there must be 
some means by which the vast number of questions which 
arise in relation to government in our complicated modern 
life shall be simplified; by which the questions that are vital 
shall be separated from the comparatively unimportant 
questions and the people who tend to think alike upon the 
vital questions may have an opportunity to make their 
votes effective by voting alike; by which, from the vast 
number of men who are available for selection to administer 
the powers of government, some may be indicated as the 
probable choice of a sufficient number of voters to give some 
chance of success in voting for them. 

If you can imagine all the sixteen hundred thousand voters 
of the state of New York, for example, going to the polls on 
an election day with no previous concert of action, but each 
determined to vote for the best man — that is, each deter- 
mined to vote for the man who of all his acquaintance seems 
to him the best to fill the position, or for the man whose 
opinion most closely agrees with his upon some subject 
which happens to be uppermost in his mind — what would 
be the result! what thousands of names would be found upon 
the ballots when they came to be counted! If a majority of 
voters were required to elect, of course there would never be 
an election. If only a plurality of votes were necessary to 
elect, the largest number of votes cast for any one man 
would inevitably be a very small proportion of the total of 
votes cast. It is highly probable that the great majority of 
the voters would have preferred that the man with the 
plurality should not be elected, and would have been quite 
ready to agree on some one else whom they all preferred to 



26 GOVERNMENT AND CITIZENSHIP 

him and considered but little less desirable than the various 
persons for whom they had cast their scattering ballots. The 
men elected in such a way would have no guide as to the 
principles, or policies, or rules of conduct which the majority 
of the voters wished them to follow in the offices to which 
they were elected. 

Such a method of conducting popular government, how- 
ever, is not merely futile, it is impossible; for human nature 
is such that long before such an election could be reached 
some men who wished for the offices would have taken steps 
to secure in advance the support of voters; some men who 
had business or property interests which they desired to 
have protected or promoted through the operation of govern- 
ment would have taken steps to secure support for candidates 
in their interest; and some men who were anxious to advance 
principles or poHcies that they considered to be for the good 
of the commonwealth, would have taken steps to secure 
support for candidates representing those principles and 
policies. All of these would have got their friends and sup- 
porters to help them, and in each group a temporary organi- 
zation would have grown up for effective work in securing 
support. Under these circumstances, when the votes came 
to be cast, the candidates of some of these extempore organi- 
zations would inevitably have a plurahty of votes, and the 
great mass of voters who did not follow any organized leader- 
ship would find that their ballots were practically thrown 
away by reason of being scattered about among a great 
number of candidates instead of being concentrated so as to 
be effective. 

Under very simple social conditions, especially in the 
smaller governmental subdivisions such as towns and coun- 
ties, and in some parts of the country where there are 
important questions involved in the local government and 
almost every one in the community is well known, so that 



THE CITIZEN'S PART EST GOVERNMENT 27 

elections are largely a matter of personal choice, this kind of 
purely personal organization and effort often answers the 
purpose of enabling voters to concentrate their ballots 
effectively. Several well-known men may offer themselves 
publicly as candidates and each of them carry on, through 
a personal organization, a campaign for the suffrages of his 
fellow-citizens. In the governmental affairs of the country 
at large, however, and for the most part in the governmental 
affairs of the states, the opportunity for personal choice is 
very limited; it is impossible that any man should be really 
personally known to a very large proportion of the people 
in the United States, or even in any state. There are ques- 
tions of government upon one side or the other of which the 
voters hold strong opinions; and men are known and are 
commended to the voters as candidates by the positions they 
have taken upon those questions, and, if they have already 
held office, by public report of the way in which they have 
performed their duties in carrying out certain policies or 
applying certain rules of conduct. Candidates, therefore, in 
these larger fields are regarded chiefly as the representatives 
of principles and policies, and so far as they are affected by 
personal popularity, that is chiefly based upon the effective- 
ness with which they have already represented those prin- 
ciples and policies. 

These great governmental questions are not temporary 
and special to particular elections. There are some questions 
of policy which are never settled permanently, because new 
conditions are always arising to serve as occasions for their 
reconsideration. For example, the subject of a protective 
tariff has furnished questions upon which the people of the 
United States have divided for a centm*y, and probably will 
divide for an indefinite time to come. These tariff questions 
reappear in one form or another at every national election 
when they do not happen to be for the moment thrust aside 



28 GOVERNMENT AND CITIZENSHIP 

by some other special and absorbing issue. The fact that 
the people have decided in favor of a high tariff at one time, 
or for a low tariff at another time, has no effect whatever to 
prevent the same old battle being fought over and over 
again. 

Series of questions relating to the extension of slavery, 
merging into the questions relating to the continuance of the 
war for the Union, and these merging again into the questions 
relating to the results of the war and the political and eco- 
nomic status of former slaves, have continued from the 
beginning of the nineteenth century to the beginning of the 
twentieth. In the same way a long dividing line may be 
seen separating people of different ways of thinking upon 
questions relating to the currency. In one form or another, 
for a long series of years, the controversy has been waged 
between the advocates of currency based upon a gold value, 
on the one hand, and the advocates of a currency based upon 
the idea that the Government can give it value in the form 
of greenbacks or depreciated silver, on the other. 

There are certain distinct and fundamentally opposed 
schools of thought and opinion which range portions of the 
people on different sides of many questions through long 
series of years. For example, the people of the United States 
during most of our national existence have been divided 
between the advocates of a strict construction and the advo- 
cates of a liberal construction of the Constitution. One 
would confine the powers of the National Government with- 
in the narrowest possible limits; the other would find in the 
Constitution all the powers that any nation can have except 
as they are expressly limited by the terms of the Constitution. 
One tends to carry the independence of local self-government 
to an extreme; the other tends to carry the centralization 
of national government to an extreme. This fundamental 
difference of view has divided the people of the country in 



THE CITIZEN'S PART IN GOVERNMENT 29 

a long series of successive elections upon many specific and 
important questions; upon the power of the National 
Government to carry on internal improvements; to restrict 
the extension of slavery; to establish a national bank; to 
charter Pacific railroads; to maintain a tariff for protection 
as distinguished from a tariff for revenue only; to acquire 
and incorporate in the United States additional territory; to 
acquire and govern so-called colonial possessions; upon the 
extent of the power to regulate commerce, of the taxing 
power, of the police power, of the treaty-making power. 

It is true that in recent years some professed disciples of 
Jefferson have advocated measures of national control which 
would have led that apostle of the least government possible 
to regard Hamilton as a strict constructionist; but these are 
probably temporary aberrations. The same division between 
the two schools of interpretation of the Constitution still 
exists and in the nature of things must continue. 

With these continuing questions and permanently divided 
schools of opinion the association of the advocates of each 
opposing view is bound to be repeated in many successive 
political campaigns. This association is not occasional and 
fortuitous; it is, to a great extent, predetermined and cus- 
tomary. The men who entertain positive views upon one 
side or the other of the great political questions become 
known; they acquire the habit of working together; they 
rely upon each other's cooperation. The association is practi- 
cally continuous, because the process in which the advocates 
of these differing views are engaged is continuous. Our 
people are so constituted that no sooner is an election over 
and the result declared than the supporters of the defeated 
candidates and the advocates of the rejected views imme- 
diately begin their efforts to secure a reversal of the result 
at the next election. The ever-present consciousness that in 
a year, or two years, or four years there will be an opportu- 



30 GOVERNMENT AND CITIZENSHIP 

nity to substitute victory for defeat is a great element in the 
peaceable and good-natured acceptance of the results of our 
elections by those who are defeated. The very intensity of the 
minority's belief that its candidates and its policies are better 
than those which for the time being have a majority of the 
votes creates an expectation that when the test of performance 
is applied to the successful candidates and the test of appli- 
cation is applied to the accepted policies, their inferiority will 
be demonstrated, so that the public verdict will be reversed. 

This continuous association and effort on the part of a 
great number of men for the accomplishment of a common 
purpose through a continuous series of political struggles of 
course involves continuous organization, for the work of a 
great number of men for a common purpose through a long 
period of time cannot be carried on at all without organiza- 
tion. These continuous, voluntary, organized associations to 
secure the adoption of policies upon which their members 
agree and the choice of officers who will represent those 
policies are what we call political parties. 

As new issues arise under the changing needs and diffi- 
culties and desires which time brings to every community, 
they find these organizations already in existence, and if the 
new issues are such as to demand settlement or excite great 
interest among the voters it becomes immediately necessary 
for the existing political organizations to determine what 
positions they will assume upon the new questions. This 
determination is naturally based either upon the apphcation 
of the general priuciples of government and the general ideas 
of policy which have controlled the respective parties, or upon 
an estimate of the support which one position or another 
will receive from the voters of the country, or upon a com- 
bination of the two. Sometimes the lines which separate 
the voters of the country upon one side or the other of a 



THE CITIZEN'S PART IN GOVERNMENT 31 

new question run across lines of cleavage between the old 
parties, and the comparative importance of the new ques- 
tion is such that great bodies of voters dissolve their asso- 
ciation with an old party and form a new association with 
another party; as, for example, the positions taken by 
the Democratic and Republican parties on the subject of the 
currency a few years ago led many gold Democrats to go 
over to the Republican party and many free-silver Republi- 
cans to go over to the Democratic party. Occasionally, the 
attitude of all existing parties is so unsatisfactory to the 
people much interested in a new question that they under- 
take to form a new party for the furtherance of their views 
on that particular question. Generally, these attempts 
show that the people who are interested by a particular new 
issue over-estimate its importance and their attempts to 
form a new party fail; but we have had one signal example 
the other way — in the formation of the Republican party 
in 1856 by the men who were not satisfied with the attitude 
of either the Democratic or the Whig party in regard to the 
extension of slavery. As a rule, however, each old political 
party adds to the list of principles and policies which it 
advocates a view upon each great new question in accordance 
with the opinions of a majority of its members, and, with 
some slight changes and realignment of dissatisfied members, 
old parties go on representing their membership upon the 
new questions as well as upon the old questions in reference 
to which their parties were organized. In time, as the 
original questions which led to the formation of a party dis- 
appear, the party continues with an organization represent- 
ing its members no longer for the specific purposes which 
brought them together, but for the new purposes which they 
have agreed upon through the processes of their party 
organization and activity. 



32 GOVERNMENT AND CITIZENSHIP 

Many very good and public-spirited men have deplored 
the existence of parties, and some of them prefer to stand 
altogether aloof from political parties and to exercise their 
right to express their opinions by voice or pen or print, and 
to vote with entire personal independence and without being 
either trammeled or helped by the cooperation of others. 

As I have tried to point out, however, poKtical parties are 
the natural product of evolution in the process of popular 
government; they are not merely the best and most practical 
way in which the operations of popular government can be 
carried on, but they furnish the only way to carry on those 
operations so far as we can judge from the experience of the 
world up to this time. In no large country has any real 
popular government ever existed for any considerable time 
without them. They exist in England, France, Germany, 
Austria-Hungary, Italy, in aU the constitutional govern- 
ments of Europe, and in the Latin-American states, with 
variations depending upon the characters of the different 
peoples; and in every case they assume more definite form 
and more clearly recognized functions as the country pro- 
gresses from the status of personal government to govern- 
ment of principle and policy. As popular government 
develops, in every case political parties develop, and in 
every case the longer the operations of popular government 
have continued and the more perfect is the expression of 
public opinion and will, the more highly developed in the 
true sense is political party organization. 

It is, of course, highly important that the voters of a 
country should hold themselves at Hberty to condemn by 
their votes any party with whose poHcy they do not agree, 
or which is false to its professions, or whose candidates for 
office are found to be unfit to represent truly the principles 
professed; nevertheless, the great mass of the people of the 
United States at every election go with one of the great 



THE CITIZEN'S PART IN GOVERNMENT 33 

parties or the other, and the great mass of the voters of each 
party stay with their party election after election. They 
approach every election with a presumption in favor of the 
policies advocated by the party to which they have adhered 
in the past. As to the majority of them, that presumption 
is never overcome. Their minds are most receptive to argu- 
ments and persuasion coming from their own party associates 
and in favor of their own predilections. The habit of reliance 
upon party leaders; instinctive loyalty to old comrades in 
former political struggles; the natural reluctance to break 
old associations and form new ones; and often the predis- 
posing effect of inherited opinions and youthful training — 
all combine to make men vote ordinarily with their party. 
This settled tendency makes the determinations reached in 
the councils of the great political parties the most important 
and dominating factors in determining the course of popular 
government, and renders participation in party action the 
most effective way to reach the mind and influence the action 
of the mass of voters. The great work of popular government 
is done in the associations and primaries and caucuses and 
conventions, in the conferences and discussions and can- 
vassing and personal association, in the private meetings 
and public meetings, in the convention committees, in the 
drafting of platforms, in the struggles between candidates 
for nomination, in the efforts to educate and convince and 
persuade voters, and in all the great and complicated process 
which goes on incessantly within each party in every village 
and town and city and state, culminating in the submission 
of the work of the national convention to the voters of the 
country at large, and, upon one side or the other, determining 
the legislative and executive policies of the country. 

I have no doubt that the American who feels the responsi- 
bilities of his citizenship can do his duty as a part of the 
governing people better by entering into the organization 



34 GOVERNMENT AND CITIZENSHIP 

of one of the great political parties than in any other way. 
The better educated, more intelligent and more active he 
is, the greater is the reason why he should seek for his powers 
the immense increase of effectiveness which comes from asso- 
ciation, combination, and organization. There are many 
abuses of party power and in party management in the 
United States; but the American who stands apart and 
criticises or condemns the conduct of political parties may 
well be answered, "Yours was the responsibility and you 
have wholly failed to discharge it." 

We sometimes hear it said by intelligent and educated men 
that there is no opportunity for them to do anything in party 
politics because the machine controls everything, and no one 
who is not in the machine has any chance — that is to say, 
that the men who for the time being hold the party offices 
will control the party action, and the voice of an individual 
new recruit in the party ranks would not exercise any control. 
This is wholly fallacious. There never is a party organiza- 
tion or a so-called machine which cannot at any time be 
turned out of power if the rank and file of the party choose to 
turn them out; and there never is a time when a man of 
character and ability entering into the active work of a 
party cannot gain in full measure the influence and power 
to which his ability entitles him, or cannot contribute materi- 
ally to a change of control, provided he is willing to take 
the pains and give the time and effort necessary to the 
creation and exercise of influence among the members of the 
party. Of course a new recruit cannot step into a new 
association with a great number of people and immediately 
dictate what they are to do. Time and long-continued effort 
and long association, through which come confidence in a 
man's sincerity and respect for a man's opinions and a desire 
to comply with a man's wishes, are necessary to the exercise 
of that kind of power; but the same things are necessary to 



THE CITIZEN'S PART IN GOVERNMENT 35 

the exercise of influence and power in any of the affairs of 
life which involve the conduct of others. If any American 
citizen is willing to make the same sacrifice of personal com- 
fort and convenience and employ the same ordinary means 
to make himself an active force in politics which he would 
employ to make himself an active force in business, or in the 
church, or among the members of any profession, or in any 
kind of enterprise which involves the action of a large number 
of men, no party machine can prevent and ordinarily no 
party machine wishes to prevent him. 

We often hear remarks made which indicate an impression 
that politicians are rather a low set of fellows, with selfish 
aims and corrupt practices, who manipulate party politics 
for their own advantage, and that the less seK-respecting 
gentlemen have to do with them the better. If that is ever 
the case, and it undoubtedly is the case at some times and in 
some places, it is always because at such times and in such 
places political control is allowed to go by default. Such a 
condition of political affairs is always due to the fact that the 
citizens who are honest, upright, and public-spirited, who 
would not prostitute party power to personal advantage, who 
would not make a party organization a corrupt combination 
to secure place and profit, fail in the performance of their 
public duty and permit the party organization which limits 
and restrains the exercise of their political powers to remain 
in the hands of unworthy and self-seeking men. There is no 
party in which the great body of the voters desire that kind 
of control, and it cannot exist unless the voters of the party, 
and the citizens who ought to be active in exercising the 
powers of the party, fail through indifference and unwilling- 
ness to spend the necessary time and take the necessary 
trouble to exercise the powers that lie within their reach. 
I have said that there are serious evils incident to the 
management of our political parties, and some of these I shall 



36 GOVERNMENT AND CITIZENSHIP 

presently mention; but they are all evils which would be 
readily remedied if the citizens generally who are in agree- 
ment upon the principles of the respective parties would 
recognize their responsibility and perform the pohtical duties 
which rest upon them as citizens. The fact that such evils 
exist, instead of being a reason for not engaging in party 
activity, is a reason for engaging in it. Such a fact presents 
a clear and imperative duty to remedy the evil; and that 
duty rests not merely upon the men who aheady have 
membership in the party, but upon all men who agree in 
general with the principles of the party, and who therefore 
ought to look upon the party officials and managers as their 
agents and to hold themselves responsible for their agents' 
character and conduct. 

Another reason or excuse for not taking part in political 
affairs is the direct reverse of those that I have mentioned: 
it is that party management is satisfactory; that matters go 
along very well, and that a man does his duty to his party if 
he supports its ticket with his vote and perhaps contributes 
his fair share toward the payment of its expenses. This 
position can never be maintained. It means, in the first 
place, that the man who takes it is wiUing to have the greater 
part of his duty as a seK-governing citizen done for him by 
others, and it means also that the power and efficiency of the 
party in working out the problems of government and in 
advocating and enforcing the conclusions which it reaches 
are reduced by the desertion of one of its elements of power 
— that is to say, the abihty and force of character of a part 
of the men who ought to be engaged in its work. 

None of these reasons for not taking part in party politics 
is ordinarily the real reason. The real reason is that men are 
unwiUing to spend the time and the money and the labor 
necessary for the due performance of their duties as citizens; 
that they prefer to attend to their professions, their business, 



THE CITIZEN'S PART IN GOVERNMENT 37 

their pleasures, and allow others to govern them rather than 
to take part in governing themselves; that they are willing 
to permit the great struggle which is continually proceeding 
for the preservation and protection of their property, their 
liberty, their opportunities, for sound principles of finance, 
for the preservation of society, for the correction of social 
and political and business evils, for the punishment of wrong- 
doing, for the furtherance of justice and the maintenance of 
peace and righteousness, to go on without any help from 
them. They are willing to let the great mass of men upon 
whose education and clear and reasonable understanding of 
governmental questions the whole structure of free govern- 
ment depends go without any help from their education and 
intelligence. They are willing to pursue a course which, if 
shared in by the rest of their countrymen, would bring our 
constitutional government to an immediate end, wreck 
our prosperity, and stop our progress. They are willing to 
depend, for the continuance of everything they have of value 
in life, upon their confidence that others will be more public- 
spirited and unselfish and willing to take trouble in perform- 
ing their public duties as citizens than they are themselves. 



38 GOVERNMENT AND CITIZENSHIP 

III 

THE DUTIES OF THE CITIZEN AS A MEMBER 
OF A POLITICAL PARTY 

It is quite simple and easy for any intelligent young man to 
take part in the activities of a poKtical party in the United 
States. He has only to select the party the ascendancy of 
which he considers most desirable, and let the recognized 
party officials of his own home know that he is willing to 
work. He will promptly find himself admitted to member- 
ship in whatever may be the simplest form of political 
organization or association in the locaHty, and will find him- 
self provided with plenty of work to do. He cannot begin 
by leadership or by dictating party poHcies, and he probably 
cannot assume in the beginning any such position of superi- 
ority as he may think his education and inteUigence entitle 
him to have. The work in which he will be engaged at first 
may be simply the details of local organizations, which will 
perhaps seem of little consequence; or engaging in struggles 
between candidates for small offices, in which he does not 
take very much interest; or canvassing from house to house 
to ascertain the political affiHations or preference of the 
residents. It may be very far from that advocacy of prin- 
ciples and influence upon the policies and direction of govern- 
ment in which he would like to engage. He may, however, 
be sure that he will ultimately find the exact level and rise 
to the full height of opportunity and influence and dignity 
of employment to which his abihties, character, and devotion 
to his duties entitle him. If he is able and willing to render 
effective service, he will gradually find himself moving along 
until he is at last engaged in the most important duties on 
the broadest fields of poHtical action. In the meantime, or 
if he should never rise above mere local activity, let him 



THE CITIZEN'S PART IN GOVERNMENT 39 

remember that the first and chief duty of citizenship is to 
serve in the ranks — not to await some great and glorious 
occasion to win fame and power. It is the active service of 
the men in the ranks that makes the difference between pop- 
ular self-government and popular submission to an absolute 
monarch. Without the great body of workers who never rise 
to leadership popular government would be as impossible 
as a successful army composed entirely of officers. 

In the performance of the simple duties of the political 
beginner there are certain principles of conduct so indispen- 
sable to usefulness that observance of them is a clear duty. 

Men influence the conduct of others chiefly through per- 
sonal association and intercourse. There is such a pre- 
ponderance of good in human nature that association with 
men ordinarily begets a liking for them. As men come to 
know each other each comes to receive from the others the 
respect and confidence to which he is entitled; his character 
and his opinions insensibly acquire their due weight and 
influence. It is not the stranger who says, " Go there," or 
" Do that," who is obeyed; but it is the old acquaintance 
who says, " Come with me," or " Let us do thus and so," 
who is followed. The knowledge of the tendencies and 
prejudices of men acquired through personal acquaintance 
makes the suggestion of a wish from a friend often of greater 
weight than the most eloquent speech or the most profound 
essay from a stranger. This power of association is the chief 
thing which enables political organizations, even when they 
are going wrong or in bad hands, to resist attacks from 
without, even from best and most highly respected citizens, 
when these occasionally and for the moment are moved to 
instruct the men actually engaged in political affairs as to 
what they should and should not do. 

There is no monopoly of this power of association. Un- 
selfish and public-spirited men can qualify themselves to 



40 GOVERNISIENT AND CITIZENSHIP 

exercise it if they take the trouble, just as well as seM-seeking 
men of low aims. 

To accomplish very much with other men one must have 
a considerable degree of sympathy with their feelings and 
interests. The man who never cares or thinks about any- 
thing but himself cannot expect anybody to think or care 
about him. If he has no interest in the hopes and ambitions 
of others, no consideration for their sensibiKties, they will be 
equally indifferent so far as he is concerned. PoHtical bodies, 
especially primary political bodies, are made up, to a degree 
unequaled in any other association, of men of widely varying 
conditions in life, with different opportunities for knowledge 
and capacity for reflection, with different prejudices and 
ways of thinking, differing widely in information, in previous 
reflection, in breadth and scope of thought, in motives, in 
characters, in tempers, in ambitions. Each one of them is 
entitled equally with all the others to have his opinions, his 
wishes, and his ambitions considered; and the feeling that 
any one gives kindly consideration to them is in itself a 
great source of influence. The man who has never had 
anything above a day's wages or a small clerk's salary, or 
who perhaps has no income but is looking for one, is just as 
much entitled to aspire to a place in the custom-house, or to 
a post office, or to be a letter-carrier, as the very successful 
and able man distinguished in his community, is entitled to 
aspire to be governor or senator; and the small man is just 
as much entitled as the big man is to have his aspiration 
considered and treated as an honorable aspiration. The 
small trader who hopes that the legislation and administra- 
tion of government wiU be such as to promote the prosperity 
of his httle business is just as much within his rights as the 
great banker who hopes for currency legislation or the great 
manufacturer who hopes for tariff legislation beneficial to 
his business. Sympathetic recognition of such considerations 



THE CITIZEN'S PART IN GOVERNMENT 41 

is a natural and necessary basis for influence and leadership 
among political associates. 

A rightly constituted man brought into association with a 
great number of others cannot fail to acquire some degree of 
proper humility. It matters not how well educated or 
intelligent a man may be, the combined experience, knowl- 
edge of life, range of thought, fertility of suggestion, thor- 
oughness of criticism, to be found in any great body of men 
taken together are so far beyond him that he is bound 
gradually to take an attitude of receiving and learning as well 
as endeavoring to instruct and lead. He will thus escape 
from the fatal attitude which ruins one's influence with others 
by giving an impression of assumed superiority in wisdom or 
virtue. 

In order to secure united and successful action for any 
purpose the members of a political party must learn to 
subordinate minor differences in order to combine for the 
advocacy and promotion of more important matters in which 
they agree. That is essential to the maintenance of any 
political organization, as indeed it is essential to successful 
combination in all human affairs. The concerted action of 
many men of different interests, impulses, opinions, and 
desires is essential to the accomplishment of any result under 
popular government; and that concerted action cannot be 
attained except by continual and mutual compromises. 
There is no quality in a people more important for success in 
popular self-government than that practical common sense 
which makes them capable of such practical compromises; 
and every one engaged in political affairs is under a duty to 
make such fair concessions from his opinions and desires as 
may reasonably contribute toward bringing out practical 
and effective results in common action. Of course this does 
not mean to compromise character. Every man, however, 
should be careful not to deceive himself into supposing that 



42 GOVERNMENT AND CITIZENSHIP 

to be a matter of conscience which is really only a matter of 
pride of opinion, or determination to have one's own way. 

In politics, as in everything else, a man ought to be think- 
ing about his work and not about what he is going to get 
out of it; to be intent on succeeding in his undertakings 
rather than upon the appearance that he is making or the 
credit that he is going to receive. That is an essential condi- 
tion to success in all the arts which deal with human nature 
as their material. I have often noticed at the bar that the 
advocate who is thinking about making a fine speech never 
makes a lodgment in the mind of either the court or the 
jury; they may admire the speech, but they are neither con- 
vinced nor persuaded. This is true at the bar, in the pulpit, 
and in the lecture room. It is equally true of literary style; 
all obtrusively fine writing is ineffective. And this is true 
in politics. I do not mean to insist upon an impracticable 
altruism, or to exclude an honorable ambition to succeed 
and to have the reward of good, effective work, which comes 
from the favorable opinion of one's fellows and a general 
recognition of one's service. Recognition and appreciation 
are properly gratifying to every one; but that should be a 
secondary object if a man is to do the best type of work. 
The primary object with every man should be to do the work 
that comes to his hands just as well and thoroughly as he 
possibly can do it; and there is one certain reward for work 
so done — in the satisfaction that the man himself feels in 
having done good work. Every man should rely for the 
appreciation and recognition of his service, not upon his own 
estimate of it, but upon the estimate of others; no man can 
properly judge of his own merit or the value of his service. 
It will often happen that particular things a man does may 
not receive from others the credit to which they are entitled; 
but it will also happen that he will get more credit than he 
is entitled to for other things that he does; and, in the long 



THE CITIZEN'S PART IN GOVERNMENT 43 

run, every man may be sure that he will receive all the credit 
to which he is entitled without any attempt on his part to 
influence the judgment of others or to force upon them his 
own estimate of himself. The man who engages in political 
work with the primary idea of getting office may succeed in 
getting the office; but he is likely to lose what is of far 
greater value than any office — the good opinion of the 
community in which he lives — for the people of self-govern- 
ing communities ordinarily possess a strangely unerring 
insight which detects the spirit in which such a man works 
and classifies him as a mere politician in the bad sense of the 
term and stigmatizes him as an office-seeker. 

The career and influence of such a man, moreover, tend 
to promote the kind of political activity which is the most 
injurious and demoralizing in popular government. 

It appears from what I have already said that there are 
three quite distinct stages in the development of self- 
government. The first and lowest is that in which the people 
of a country divide with sole reference to their partisanship 
for particular persons whom they desire to put into power. 
In its worst form this kind of partisanship is so completely 
exclusive of consideration for public good that the contest for 
personal ascendancy often merges into violence and civil war 
and continuous revolutionary attempts. This condition was 
once widely characteristic of Latin-American republics, and 
some of them are still at that low stage of development, 
although many of them and the most important have happily 
passed out of that stage and have come to regard the choosing 
of officers as the means of giving effect to policies rather than 
as being itself the object of popular government. Those coun- 
tries have had one preeminently great and noble example. 

Jose de San Martin was born in Argentina, served with 
distinction under the Spanish flag in the Napoleonic wars, 
and returned to his native land at a critical period of the 



44 GOVERNMENT AND CITIZENSHIP 

South American struggle for independence. Everywhere 
except in the United Provinces of the River Plate the early 
revolutionary efforts had been suppressed by Spain. The 
old vice-royalty of Peru, strong in its mountains, in its army, 
and its command of the sea, was the center of reactionary 
power. Impregnable there against attack, it seemed that 
Spain could choose her own time to sweep down over the 
old trade route by which the precious metals of Peru had 
found their way to the commerce of the Plate and to destroy 
all that was left of South American freedom. San Martin 
conceived the great design of leading an Argentine army 
across the Andes, conquering the Spaniards in Chile, setting 
that country free, creating a navy on the Chilean coast, 
destroying Spanish naval power in the Pacific, and, having 
acquired command of that ocean, attacking and overcoming 
the Spaniards in Peru along the same line of approach from 
the west that had been followed by the old eonquistadores. 
He executed his design with amazing audacity, tenacity of 
purpose, power over men, organizing skill, and self-devotion. 
He overcame obstacles apparently insuperable, achieved one 
of the really great military and poHtical movements of his- 
tory, and ruled in Lima as " Founder of the Liberty of Peru." 
In the meantime, Bolivar had led successful revolution in 
Venezuela and Colombia, and the union of the northern 
and southern patriot forces seemed about to complete the 
eradication of Spanish rule in the Southern Continent. 

The character and conduct of Bolivar soon made it plain 
that he regarded San Martin as a rival, that they could not 
cooperate, and that the continuance of both commands 
meant strife for personal power between the two leaders — 
to the destruction of the patriot cause. Then San Martin 
gave an example of seK-sacrifice more admirable than his 
victories or his strategy. In order that a united patriot army 
might oppose the forces of Spain, he effaced himself, laid 



THE CITIZEN'S PART IN GOVERNMENT 45 

down his command, his titles, his dignities, and power. He 
sent to BoHvar his pistols and his war horse with this note; 
Receive, General, this remembrance from the first of your admirers, 
with the expression of my sincere desire that you may have the glory oL 
finishing the war for the independence of South America. 

And he left the scene of his great achievements never to 

return. Bartolome Mitre says truly: 

History records not in her pages an act of self-abnegation executed 
with more conscientiousness and with greater modesty. 

San Martin died misunderstood and in exile. To the 
generals and politicians who were plunging the South Ameri- 
can republics into continual bloodshed for their own selfish 
ambitions, and to their adherents, the spirit of self-assertion 
which demands power and fame seemed admirable and the 
spirit of self-effacement for a cause seemed weakness. But 
as the people of those countries have risen to a higher plane 
of duty and honor, there has come the realization that the 
great South American — the one worthy to be named with 
Washington as the example and inspiration of patriotism — 
was the modest soldier who cared more for his cause than 
for his oflBce, and who was willing not merely to wield power, 
but to give up power, for his country's good. 

It has always seemed to me that Mr. Tilden pursued a 
very patriotic and commendable course when the election to 
the presidency was in question between him and Mr. Hayes 
in 1876. The election was very close and there was no doubt 
that if all the votes actually cast in the Southern States 
received effect Mr. Tilden would be declared elected; but 
many votes had been thrown out by the state returning 
boards in the South on account of alleged fraud and intimi- 
dation that had prevented the casting of other votes, which, 
if cast, would probably have caused a different result. There 
was a question that inevitably would have resulted in civil 
war in any country where the personal idea was predominant 



46 GOVERNMENT AND CITIZENSHIP 

in politics, and there were in this country many men of high 
character and standing who m-ged that Mr. Tilden's title to 
the office should be asserted by armed force; but he was 
decided and immovable in the position that he would permit 
no breach of the peace of the country in his behalf, whether 
he got the presidency or not. The questions were finally 
submitted to a special court devised for the purpose, and 
that court by a majority of one decided in favor of Mr. 
Hayes. So Mr. Tilden lost the presidency; but he gained 
what was of far greater value — a title to the esteem and 
gratitude of all good citizens. He probably rendered a 
greater and more permanent public service than by anything 
he could have done as President. 

The second stage of development in popular government 
is reached when the people of a country have passed beyond 
exclusive attachment to individual fortunes and, turning 
their attention to questions of priuciple or pohcy or material 
interest, have arrayed themselves in support of their various 
opinions or desires, but have not yet reached the point 
where they are able to subordinate minor considerations 
upon which they differ to those of primary and vital impor- 
tance upon which they agree. In this stage of develop- 
ment many groups make their appearance, each having some 
controlling idea which it regards as of primary importance. 
Sometimes those ideas are local; sometimes they are reli- 
gious; sometimes they relate to special class or business 
interests; sometimes they relate exclusively to some special 
political, social, or economic question. The most conspicu- 
ous result of such a condition is found in the election of 
legislative bodies, in which representatives of all the different 
groups are found, and in which no party has a majority; so 
that no affirmative legislation is possible except by trades 
and combinations between different groups. One effect of 
this legislative condition is that in countries where the 



THE CITIZEN'S PART IN GOVERNMENT 47 

executive is responsible to the legislature the executive can- 
not depend upon steady and constant support from the law- 
making body in any line of policy, because the combination 
of groups is continually changing and the executive that 
has a majority today may find itself in the minority to- 
morrow. There are some countries where this government 
by groups exists, in which the constant fluctuation of legis- 
lative combinations and majorities leads to very frequent 
changes in the responsible ministry; and in those countries 
good administration is almost impossible, not only because 
there can be no continuity of executive policy, but because 
the heads of the executive departments who constitute the 
ministry are seldom able to do more than to begin to learn 
their business before they are turned out to make place for 
new men, who have again on their own account to begin 
the same process of learning the business. The most cor- 
rupt and unsatisfactory period in the government of Great 
Britain was when Parliament was divided into groups in 
this way. 

Great Britain has passed out of that stage into the third 
and higher stage of development, in which two great political 
parties oppose each other upon fundamental differences, the 
members of each differing in many respects among them- 
selves upon minor questions but not allowing those differ- 
ences to break up their party. This condition now exists 
both in England and in the United States. Under it the 
executive government has the continuous support of its own 
party, and so long as that party is in the majority there is a 
united and effective government. When that party ceases 
to command the support of a majority of the people, it goes 
out of power and the other party comes into power to receive 
an equally effective support until another change comes. 

The course of evolution in popular government is thus 
from the formation of an indefinite number of individuals 



48 GOVERNMENT AND CITIZENSHIP 

into parties with the idea of putting men into office, to the 
formation of an indefinite number of parties grouped espe- 
cially with regard to advancing special interests and ideas, 
and thence to the formation of two great parties representing 
fundamental differences in the general principles and policies 
of government. The development is from the unmixed pre- 
ponderance of personal and selfish motives to the predomi- 
nating motive of common good for the country. 

Since personal selfishness and desire for personal aggran- 
dizement are by no means eradicated from human nature, 
there is a constant tendency in political parties to revert to 
a lower type. Party leaders frequently use for their own 
personal advantage the power conferred upon them for 
advocacy of those ideas which the members of the party 
beheve to be for the best interests of the country. This 
tendency is promoted by every man who takes part in 
political activity with the primary purpose of getting an 
office for himself, and it is discouraged and reduced by every 
man who takes part in poHtical affairs with the primary 
purpose of doing effective service to advocate the principles 
that he beheves in and to elect officers who will apply those 
principles, leaving the question of his own personal reward 
and advantage to come from such recognition of his service 
as others may think it deserves. 

The tendency to revert to the lower type of organization 
which concerns itself solely in the obtaining of office is one 
of the evils to which I referred in a former lecture when dis- 
cussing the objections sometimes urged against taking part 
in poHtics. This evil has been very prevalent in American 
politics, and it is still prevalent, although to a less extent 
than formerly. With us it takes the form of grafting upon 
the great parties of voters organized for the advocacy of 
certain declared principles an organization of active party 
workers for the distribution of offices. 



THE CITIZEN'S PART IN GOVERNMENT 49 

The process is a very plain and natural one. The object 
for which the voters have associated in a party is to bring 
about the application of certain principles and conformity 
to certain policies in carrying on the government of the 
country. The only way to secure that is by agreeing upon 
and voting for candidates for office who, if elected, will 
observe those principles and follow those policies. There is 
an immense number of these offices, of varying grades, from 
the presidency down; there are national and state, county and 
city, town and village officers, legislative and executive and 
judicial officers; great numbers of clerks and collectors, 
inspectors and watchmen, agents of different kinds, mechan- 
ics, and skilled and unskilled laborers. Comparatively few of 
these, and generally the most important, are actually elected 
by the people; the great mass of them, particularly of the 
minor officers and employees, are selected and appointed by 
the officers who have already been chosen by election, and 
about this selection and appointment the people have nothing 
to say except as individuals among them may make requests 
or recommendations to the appointing powers. 

The proper and necessary operations of a party cover a 
wide field of activity. They include the selection of candi- 
dates for the elective offices. This is done sometimes by 
means of the direct expression of the wish of the voters of 
the party, but more frequently by having the voters of the 
party elect delegates to conventions which meet and select 
the candidates. The operations of the party also include 
the consideration, discussion, determination, and statement 
of the position of the party upon the important public ques- 
tions of the day. This also is done by the same conventions 
which select the candidates. The operations of the party 
also include appeals to the people to vote for the candidates 
which represent the party. These appeals are made by 
personal canvasses from house to house, by public meetings 



50 GOVERNMENT AND CITIZENSHIP 

and speeches, by the circulation of campaign literature 
through the mails and through the columns of the press. 
There are also included the general and concerted efforts to 
get out the vote, to see that the voters of the party do not, 
through indifference, stay at home and neglect to vote at 
aU; and also the manning of the polls under concerted and 
systematic arrangement, for seeing that the voters of the 
party are not denied their rights at the polls, and that no 
fraud is perpetrated or undue advantage is taken by the 
members of the other party in the voting or the counting 
of the vote. All these things require an immense amount 
of hard work and the participation of a great number of 
men, and aU these workers have to be directed. System, 
organization, control, leadership, are absolutely necessary; 
leadership of opinion in the framing of platforms and in the 
selection of proper candidates, and leadership of adminis- 
tration in the carrying on of the work. 

This enormous mass of work preceding and leading up to 
the exercise of the franchise and, so far as we can judge 
both from reasoning and experience, essential to make the 
ballot effective, is done by volunteers, who receive no com- 
pensation from the state for the pubKc service they are 
rendering and must be inspired by some other motive. So 
well established is the understanding that these are the 
processes by which Americans work out the results to be 
confirmed by the ballot, that laws have been made in the 
larger states, where political affairs are most complicated, 
to regulate proceedings in the political parties by primary 
laws designed to prevent fraud in the selection of delegates 
to conventions and in the choice of candidates. 

It is not at all unnatural that among the men who do 
this voluntary work resulting in the selection of candidates 
and their election to public office there should be many who 
desire to be appointed to the offices and employments at the 



THE CITIZEN'S PART IN GOVERNMENT 51 

disposition of the oflBcers so elected. Unfortunately, there 
has grown up in the United States a practice of considering 
the service of party workers leading to the selection and 
election of candidates as a controlling reason for the appoint- 
ment of those party workers to the places at the disposal 
of the candidates after their election; and that practice has 
resulted in the prevalent understanding that there is an 
implied agreement by every successful candidate for an 
elective office to reward support by exercising his govern- 
mental powers for the appointment and employment of his 
supporters. The practice originated in the complicated 
political activities of the great states of New York and 
Pennsylvania early in the last century. It was extended to 
the Federal Government under the presidency of Andrew 
Jackson, and the most familiar statement of it was made by 
William L. Marcy in the Senate of the United States in the 
debate on Jackson's nomination of Martin Van Buren to be 
minister to England. Marcy said: 

It may be, sir, that the politicians of New York are not so fastidious 
as some gentlemen are as to disclosing the principles on which they act. 
They boldly preach what they practice. When they are contending for 
victory, they avow their intention of enjoying the fruits of it. If they 
are defeated, they expect to retire from ofl5ce; if they are successful, 
they claim, as a matter of right, the advantages of success. They see 
nothing wrong in the rule that to the victor belong the spoils of the 
enemy. 

The application of this principle is not confined to the 
demand of the individual party worker upon the successful 
candidate for a recognition of his personal service; it goes a 
step further back and affects the action of the party worker 
in the selection of party leaders who will support and press 
the party worker's claim to recognition from the public 
officer when elected. It determines the selection of the 
party committees and their chairmen, from the lowest local 
committee in the assembly district or town or village, who 



52 GOVERNMENT AND CITIZENSHIP 

are expected to press the claims of the men who elect them 
for appointment and employment, up through the county 
and state committees to the national committee and the 
chairman of the national committee, who directs the vast 
machinery of the presidential election. It converts the 
whole party organization commissioned by the voters of a 
party to conduct the systematic proceedings which shall 
enable them to maintain and advance their political prin- 
ciples by their votes, into an organization primarily for the 
parceling out of offices, and incidentally for the promotion 
of party principles so far as may be necessary to keep the 
voters of the party from repudiating the party organization. 

Several results follow from the application of this principle. 

It leads to a selection of candidates for office based pri- 
marily on their supposed willingness to carry out the impHed 
obligation to use their official powers, if elected, for the 
reward of their party supporters, the fitness of the candi- 
dates and the benefit which the public will receive from theiir 
service being considered only when it is probable that an 
election will be close and that every vote will be needed. 

It leads to the exercise of the appointing power by the 
public officers who are elected in this way, not with reference 
to the public service which the appointees can render, but 
with reference to the poHtical service which they have 
already rendered in the selection and election of the officer. 
It goes farther than this in its effect upon the exercise of 
official power, for by natural extension it is made to cover 
an assumed obligation on the part of public officers in the 
performance of their other duties to act, not with reference 
to the public good, or for the promotion of the great poHcies 
of a party, but in such a way as to secure the greatest number 
of offices with the greatest possible emolument to the mem- 
bers of the party organization. This obHgation is assumed 
to rest upon legislators, and sometimes even upon judges. 



THE CITIZEN'S PART IN GOVERNMENT 53 

It demoralizes the public service, by establishing a tenure 
of oflBce which depends not upon faithful and eflBcient service 
to the country, but upon service in party primaries and 
caucuses and conventions; and it tends to make the elected 
oflficers feel responsible not so much to the public opinion, 
which judges of their fidelity and efficiency, as to the party 
managers who are to determine whether they shall be re- 
nominated or not. This cannot fail to result in poor service. 
It is impossible to have good service in any business, public 
or private, unless the character of the service itself is to 
determine whether it shall continue. This has been very 
well illustrated in a way which any one who has been in the 
habit of frequenting the city of New York during the past 
twenty years can appreciate. That city formerly had a 
street-cleaning department managed by a bi-partisan police 
board composed of two Democrats and two Republicans. 
The members of the street-cleaning force were appointed for 
the political committees of the two parties. The party 
committees and the party leaders in the different assembly 
districts in the city were furnished with tickets, which they 
distributed to their supporters. On the presentation of these 
tickets the holders were treated as entitled to employment 
on the force. Their retention on the force depended entirely 
on the favor of the party managers from whom they got 
their tickets — not at all upon the way in which they did 
their work. They were lazy, inefficient, undisciplined, and 
without effective supervision, because under that system 
no supervision could have any effect; and the streets of 
New York were continuously disgracefully filthy. The evil 
became so great that the legislature at Albany changed the 
law and provided for a superintendent of street cleaning; 
and about that time one of the occasional revolts of the city 
of New York occurring, a good business man was made 
mayor and he appointed Colonel George E. Waring, of New- 



54 GOVERNMENT AND CITIZENSHIP 

port, a distinguished sanitary engineer, superintendent of 
street cleaning. Colonel Waring threw overboard the whole 
existing system, established a rigid system of supervision, 
paid no attention to so-called political claims, and promptly 
dismissed every man who was found to be lazy or inefficient. 
Within a few months he had an active and effective force; 
the streets of the city were swept clean and kept clean, and 
they continued so until Colonel Waring's lamented death and 
for a long time after, until the system which he had inaugu- 
rated gradually fell into disuse and the old habit of using 
the street-cleaning department as an opportunity for giving 
employment on the grounds of party service was resumed; 
and the city has become again disgracefully unclean. 

The appHcation of the principle announced by Senator 
Marcy tends to weld the official personnel of party organiza- 
tion into a compact body of men, who, depending upon each 
other for personal advancement, stand by each other at all 
hazards and oppose the power of organization to every effort 
on the part of the mere voting members of the party to take 
any course in party action which may interfere with the 
regular business of bartering offices for support and support 
for offices. As the men who form such a compact official 
organization expect to make their living by it, they are able 
to devote their entire time to the manipulation of party 
affairs, and in that way have a great advantage over the 
business and professional men, who must devote themselves 
to their business and professions and can give but a small 
part of their time to poUtical activity. 

Another and peculiar result of this system is the creation, 
in some places where the system is in full force, of double 
governments, one carried on by the executive and legislative 
and judicial officers provided for by law, the other carried 
on by the official organization of the party which happens to 
be in the majority, under the direction of the party leader. 



THE CITIZEN'S PART IN GOVERNMENT 55 

who controls the action of the lawful officers. There have 
been cities in which substantially the whole board of alder- 
men have invariably and without question voted as they were 
directed by the leader of the majority party in the city, and 
upon all important questions have waited habitually to get 
his orders before voting; in which the executive and adminis- 
trative officers have sought his instructions rather than the 
instructions of the mayor, and in which the minor judicial 
officers have uniformly conformed their judgments to his 
wish. There have been states in which the party leader has 
habitually determined what bills should and what bills should 
not be passed by the legislature, and in which the majority of 
the legislature have uniformly sought and obeyed his instruc- 
tions. The lawful officers are thus subservient to the party 
leader, because they hold their offices at his will by virtue 
of the compact organization behind him, which will control 
future conventions, nominations, elections, and appoint- 
ments. 

A peculiarity of this kind of government is that the real 
governing power is without legal responsibility and is practi- 
cally free from statutory legal restrictions. The party 
leader combines legislative and executive functions, and he 
often trenches upK)n judicial functions. He acknowledges no 
obligations to the public; his obligations are simply to 
secure offices for his followers. To pay a legislator for his 
vote, or an executive officer for the exercise of his discretion, 
is a felony, and for an officer to receive a bribe is a felony; 
but the party leader is under no legal prohibition against 
receiving any consideration or acting upon any personal 
interest in the exercise of his power, which controls both the 
vote of the legislator and the discretion of the executive. 
The only danger he has to apprehend is that the voters of 
his party may repudiate his candidates, and against that he 
is measurably protected by the fact that such action will be 



56 GOVERNMENT AND CITIZENSHIP 

at the cost of putting the government into the hands of those 
who would administer it upon principles and according to 
policies which the voters consider unsound and injurious. 

Such a system is not essential to effective party organiza- 
tion. On the contrary, it tends to prevent effective party 
organization; it tends to keep out of the organization the 
men whose service would be most effective, and to make 
more difficult the work of the men who take part in the 
organization with the real purpose of making it accomplish 
its legitimate results. It tends to make an organization 
which does not really represent the voters of the party, and to 
leave the voters of the party without any genuine representa- 
tive organization. It results in elections in which the voters 
of the country have no opportunity to express by their 
ballots their real choice of candidates or their real opinions 
upon public questions. It weakens one of the great agencies 
for carrying on a popular government and introduces an 
injurious imperfection into the method by which alone 
pubhc opinion can be made effective through governmental 
machinery. 

The whole system is pernicious and discreditable to Ameri- 
can citizenship. It ought to be done away with and pohtical 
parties ought to be brought back to the sole performance of 
their proper function as organizations for the promotion of 
principles and policies, free from the control of mere office- 
trading combinations. 

It is, however, mere folly to say that the existence of such 
an evil furnishes a reason why educated, self-respecting 
Americans should not take part in the work of the pohtical 
parties with which they vote. On the contrary, the existence 
of the evil presents a manifest and urgent duty to the con- 
science and patriotism of every competent American. 

The duty is to enter into the work of party activity and 
help make the party organization what it ought to be. The 



THE CITIZEN'S PART IN GOVERNMENT 57 

duty rests upon each intelligent citizen in his own community 
to incite the voters of the party he believes in to take charge 
of their own affairs, and to substitute party organization and 
party leadership which are really representative of them in 
place of the party organization and the party leadership 
which are maintained by the distribution of oflBce for the 
sake of office. 



58 GOVERNMENT AND CITIZENSHIP 

IV 

THE GROUNDS FOR ENCOURAGEMENT 

The third lecture of this series set forth the evils resulting 
from the usurpation of party control by a mere office- 
bartering combination which takes the place of organization 
for legitimate party purposes, and the citizen's duty to aid 
in doing away with such usurpation. 

Such a change is entirely practicable. To doubt that it 
can be made is to doubt the capacity of our people for self- 
government, because the change requires only such willing- 
ness to perform the duties of citizenship as is essential to the 
successful exercise of popular self-government. It cannot be 
produced suddenly or without systematic and continuous 
effort, or by mere exhortation or protest. It must come 
slowly, in the ordinary course of political development. It 
cannot be expected that the men who compose party organi- 
zation will become suddenly altruistic. The evil to be dealt 
with is a strong affirmative assertion of the self-interest of 
the old type of party organizers, and it cannot be overcome 
by a mere negative. It must be met by a stronger assertion 
of the more powerful interest of the party voters. Such a sys- 
tem is not necessary to secure the filling by a member of the 
dominant party of every office the duties of which bear any 
relation to the effectiveness of party policy; on the contrary, 
it tends to the ffiling of offices by men who are indifferent to 
party policy, and whose allegiance is solely to their own 
personal interest. The destruction of the system will not 
exclude party workers from pubHc office; it will simply 
deprive them of their claim to public office when they can- 
not justify it on public grounds. 

The obnoxious system already has been greatly reduced in 
its scope and power. The modern civil-service method of 
selection for appointment has withdrawn from the bargain 



THE CITIZEN'S PART IN GOVERNMENT 59 

counter a great mass of governmental offices and employ- 
ments individually of minor importance but in the mass of 
very great importance. The governments of our insular 
possessions have been established and maintained without 
any regard whatever to the payment of political debts. No 
attention is paid to party affiliation or service in appoint- 
ments in the military and naval services. Within the past 
year the consular service has been brought under new regu- 
lations, by which all the higher places are filled by promotion 
on the basis of efficiency as established in the service, and 
the lower positions are filled by original appointment upon 
thorough examination. The fourth-class post offices have 
been brought under a new rule, which makes the continuance 
of the office depend upon the merit of the officer rather than 
upon political favor. Thus, the stock in trade of the office 
business is being rapidly reduced. Throughout the Federal 
service the theory of implied obligation to pay political 
debts with offices is gradually and very generally weakening 
and tending to disappear. The widespread pressure for 
direct primaries indicates a determination among party 
voters to secure a real expression of their own will in the 
selection of candidates. It needs only to continue the process 
that is now going on, in order to free these great agencies of 
government from the false organizations which have so long 
oppressed them, as the Old Man of the Sea on the neck of 
Sinbad; to make our party organizations generally, as they 
already are in some places, really representative; and to 
make party leadership depend, as it does now in some states, 
upon leadership of opinion, upon the confidence of the com- 
munity, upon political wisdom, upon superior ability to assert 
and maintain the principles and policies of the party. 

In the whole field of popular government I am convinced 
that one of the plainest duties of citizenship is hopefulness, 
and that pessimism is criminal weakness. 



60 GOVERNMENT AND CITIZENSHIP 

If one is to judge tlie world and the conduct of men by 
comparison with a standard of ideal perfection, of course 
everything will be found wrong. If the question we ask is 
whether the world, or any community in it, is good or bad, 
right or wrong, we must recognize a painful degree of error 
and selfishness, and injustice and cruelty, and indifference, 
and ignorance. 

The true question, however, is not what the world is, but 
what its tendencies are. Is it moving towards better things, 
or worse ? Is the level rising, or falling ? Mark the condi- 
tion and character of civilized peoples in successive centuries 
or generations, and see whether liberty and justice and 
righteousness have been gaining, or losing. See whether edu- 
cation has gained ground, or lost; whether men generally 
are more, or less intelligent; whether they have grown more 
cruel, or more kindhearted; more selfish, or more regardful 
for the rights of others; whether government is more pure, 
or more corrupt; whether the laws are more, or are less just 
— more, or less respected. Thus you will learn whether to 
look to the future with confidence and hope, or with distrust 
and with forebodings. 

You will find that such an inquiry yields a most cheerful 
and encouraging response as to the condition and proba- 
bilities of popular government. 

There is not one element of character, of capacity, or of 
practice going to make up what government ought to be in 
which there has not been steady and great advance in the 
progressive development of government by the people. 

It is impossible to read an account of the life of the 
people of any civilized country in any past century with- 
out finding an amazing degree of cruelty, of oppression, of 
immorality, of corruption, and of class privilege regardless 
of common right, which has now been substantially done 
away with. 



THE CITIZEN'S PART IN GOVERNMENT 61 

To go no farther back than the early years of the last 
century in England, the reform of the criminal law, under 
which more than two hundred offenses were punished by 
death; the struggle for Catholic emancipation; and the 
revolution in parliamentary representation, which destroyed 
the rotten borough system and transferred power from the 
landed aristocracy to the great middle class in England, mark 
the positions from which popular government has advanced. 

If we go back to the early days of the eighteenth century 

John Morley says: 

A candid and particular examination of the political history of that 
time, so far as the circumstances are known to us, leads to the conclusion 
that Walpole was the least unscrupulous of the men of that time. 

Yet he says: 

. . . That Walpole practiced what would now be regarded as parlia- 
mentary corruption is undeniable. But political conduct must be judged 
in the light of political history. Not very many years before Walpole a 
man was expected to pay some thousands of pounds for being made 
Secretary of State, just as down to our own time he paid for being made 
colonel of a regiment. Many years after Walpole, Lord North used to 
job the loans, and it was not until the younger Pitt set a loftier example 
that any minister saw the least harm in keeping a portion of a public loan 
in his own hands for distribution among his private friends. For a Minister 
to buy the vote of a Member of Parliament was not then thought much 
more shameful than almost down to our own time it has been thought 
shameful for a Member of Parliament to buy the vote of an elector.^ 

Lecky says of Walpole and his times: 

He governed by means of an assembly which was saturated with 
corruption, and he fully acquiesced in its conditions and resisted every 
attempt to improve it. He appears to have cordially accepted the maxim 
that goverrunent must be carried on by corruption or by force, and he 
deliberately made the former the basis of his rule. . . . The systematic 
corruption of Members of Parliament is said to have begun under Charles 
n, in whose reign it was practiced to the largest extent. It was continued 
under his successor, and the number of scandals rather increased than 
diminished after the Revolution. Sir J. Trevor — a Speaker of the 

^ Walpole, By John Morley. London. 1889. In Twelve English Statesmen 
Series. 



62 GO^^RNMENT AND CITIZENSHIP 

House of Cominons — had been voted guilty of a high crime and mis- 
demeanor for receiving a bribe of 1,000 guineas from the city of London. 
A Secretary of the Treasury — Mr. Guy — had been sent to the Tower 
for taking a bribe to induce him to pay the arrears due a regiment. Lord 
Ranelagh, a paj-master of the forces, had been expelled for defalcations in 
his office. In order to facihtate the passing of the South Sea Bill, it was 
proved that large amounts of fictitious stock had been created, distributed 
among, and accepted by. Ministers of the Crown. Aislabie, the Chan- 
cellor of the Exchequer, was expelled, sent to the Tower, and fined. The 
yoimger Craggs, who was Secretary of State, probably only escap>ed by a 
timely death. His father, the Postmaster-General, avoided inquiry by 
suicide, and grave suspicion rested upon Charles Stanhope, the Secretary 
of the Treasury, and upon Sunderland, the Prime Minister. When such 
instances could be cited from among the leaders of politics, it is not sur- 
prising that among the undistinguished Members corruption was notorious.^ 

Lecky says, also, of the same period: 

The magistrates were in many cases not only notoriously ignorant and 
inefficient, but also what was termed " trading justices," men of whom 
Fielding said that " they were never indifferent in a cause but when they 
could get nothing on either side." The daring and the number of robbers 
increased tUl London hardly resembled a civilized town. " Thieves and 
robbers," said Smollett, speaking of 1730, " were now become more 
desperate and savage than they had ever appeared since mankind were 
civilized." The mayor and aldermen of London in 1744 drew up an 
address to the King, in which they stated that " divers confederacies of 
great mmibers of evil-disposed persons, armed with bludgeons, pistols, 
cutlasses, and other dangerous weapons, infest not only the private lanes 
and passages, but likewise the public streets and places of usual concourse, 
and commit most daring outrages upon the persons of Your Majesty's 
good subjects whose affairs obHge them to pass through the streets, by 
robbing and wounding them, and these acts are frequently perpetrated at 
such times as were heretofore deemed hoiu-s of security." . . . The more 
experienced robbers for a time completely overawed the authorities. 
" Officers of justice," wrote Fielding, " have owned to me that they have 
passed by such, with warrants in their pockets against them, without 
daring to apprehend them; and, indeed, they could not be blamed for 
not exposing themselves to sure destruction; for it is a melancholy truth 
that at this very day a rogue no sooner gives the alarm within certain 
pm-heus than twenty or thirty armed villains are foimd ready to come to 
his assistance." 

1 A History of Engla-nd in the E}ighteenSi Century, William Edward Hartpole 
Lecky. Vol. L p. 393. 



THE CITIZEN'S PART IN GOVERNMENT 63 

At the same period the country roads of England were 
beset by highwaymen. Dick Turpin, Jonathan Wild, and 
Jack Shepard shared the admiration and sympathy of the 
people with the daring smugglers who waged continual war 
on all the coasts against the collectors of the government 
revenue. The customs of the country permitted, and the 
laws did not prevent, the plundering of all wrecks upon the 
coasts. The jails were filthy breeding places of pestilence. 
There was but little systematic effort for the relief of the 
insane, the diseased, the injured, or those helpless through 
infancy or age; and there was but little effort toward educa- 
tion or enlightenment outside of the fortunate few who made 
up the landed aristocracy. 

When we reflect that these conditions existed so late as 
during the lives of the men who signed the American Declara- 
tion of Independence, and draw a comparison with the 
conditions existing today through the development of the 
same political institutions, under the control of the same 
race, in England, in the United States, in Canada and Aus- 
tralia, we cannot fail to realize that the evolution of self- 
government has been accompanied by amazing progress, 
not only in material prosperity, but in honesty, in human- 
ity, and in the capacity to maintain order and do justice 
that leads to the higher intellectual and spiritual life of 
mankind. 

In our own country we may take for comparison the 
shameful breach of the terms of Burgoyne's surrender, 
the refusal of the States to give effect to the provisions of 
the treaty of peace with England for the protection of the 
loyalists; the impotence of the Continental Congress, which 
Charles Lee described as " a stable of stupid cattle that 
stumbled at every step "; the jealousies, the pettiness, and 
the narrow prejudice that hampered and almost ruined the 
work of Washington; the incapacity of administration to 



64 GOVERNMENT AND CITIZENSHIP 

which, and not to poverty, was due the distress at VaUey 
Forge, where the footsteps of our poor soldiers could be 
traced by the blood on the snow, not because there were no 
shoes and stockings, but because shoes and stockings were 
not deHvered where they were needed. 

The humiliating experience of the second war with Eng- 
land revealed inefficiency and incompetency of federal admin- 
istration that would be ludicrous if it were not lamentable. 

It would not be possible now to elect such a man as 
Aaron Burr vice-president of the United States; or to leave 
in command of the army a man like Wilkinson, who was 
known to be in receipt of an annual payment of two thousand 
doUars from Spain while we were in controversy with that 
country over the possession of Florida, and whose friends 
defended him by the assertion that while he took the money 
he did not mean to give Spain any equivalent for it. 

Such a condition of affairs as prevailed in om* Congress at 
the time of the Credit Mohilier business could not exist now. 
The atmosphere which existed iu Washington at that time 
made it possible for a group of men, most distinguished and 
powerful among the pubHc servants of the nation, to pur- 
chase or accept gifts of securities of corporations upon whose 
interests they were to vote in one or the other House of 
Congress. The whole tone of the public service was such 
that their moral vision was obscured. The same men today 
would find it impossible to do what they did then, because 
there is a clearer air and a better recognized standard of 
official moraHty. The conditions which made it possible for 
the unfortunate Belknap, as Secretary of War, to sell appoint- 
ments, and for the trusted official aides of the President to 
be smirched by the whisky frauds of Grant's second admin- 
istration, happily no longer exist, and no longer can exist. 

The very nature of the evils which we are now most 
earnestly calling upon the Government to remedy is an 



THE CITIZEN'S PART IN GOVERNMENT 65 

evidence of the advance in governmental ethics and effi- 
ciency, for those evils consist very largely of practices which 
formerly passed unnoticed, while still greater evils engrossed 
the efforts for reform. 

A fair illustration of this is to be found in an old statute 
of the state of New York. It is entitled " An Act instituting 
a lottery for the promotion of literature and for other pur- 
poses," passed April 13, 1814, It begins: 

Whereas, Well-regulated seminaries of learning are of immense im- 
portance to every comitry, and tend especially, by the diflPusion of science 
and the promotion of morals, to defend and perpetuate the liberties of a 
free state: Therefore, 

Section 1. Be it enacted by the People of the State of New York, 
represented in Senate and Assembly, That there shall be raised by 
lottery, in successive classes, a sum equal in amount to the several 
appropriations made by this act. 

The act then proceeds to appropriate the sum of one 
hundred thousand dollars for the benefit of Union College, 
forty thousand dollars for the benefit of Hamilton College, 
forty thousand dollars for the Asbury African Church in the 
city of New York for the purpose of enabling them to dis- 
charge a debt and to establish a school, and thirty thousand 
dollars for the College of Physicians and Surgeons; and it 
makes certain provisions for the benefit of Columbia College. 

There was a tradition among American college men in 
my youth that old Doctor Eliphalet Nott — clarum et vener- 
ahile nomen — bought out the interests of the other insti- 
tutions under this statute and made much money for Union 
College out of the lottery, doubtless greatly to " the diffusion 
of science and the promotion of morals." 

I have often thought in recent years, when I have seen 
very good people wringing their hands over the failure of 
government to wholly suppress gambling in its various forms, 
that a reference to this standard of the year 1814 showed the 
difficulty to be, not the decadence of government, but the 



66 GOVERNMENT AND CITIZENSHIP 

advance of morals; not the failure of government to per- 
form its duty as well as that duty was once performed, but 
the greater burden which we are constantly putting upon 
the government to make its enforced restrictions upon a 
minority of the people keep pace with the voluntary self- 
control of the majority of the people. 

Many illustrations of the same process can be found. 
The objectionable railroad practices which are now so widely 
and justly condemned, and which furnish so fertile a source 
of political discussion, are not new practices; they are old 
practices which formerly passed sub silencio. The railroad 
rebates which are now forbidden by law, and for which great 
corporations are being indicted and convicted, are merely a 
form of the discriminatory rates which once prevailed with- 
out objection. Thirty years ago all railroads gave special 
rates to shippers. That was the existing form of competition, 
and competition not only was permitted, but it was enjoined 
by law, and any attempt to restrain it was, as it now is, 
unlawful. It was by giving special rates that railroad com- 
panies induced people to build factories and packing houses 
and elevators and a great variety of other business estab- 
hshments along the lines of their roads; that was the way 
they built up their business and built up the country through 
which the roads ran. In recent years, however, the people of 
the country have come to an appreciation of the idea that 
these great public agencies, which have conferred upon them 
the right of eminent domain and perpetual franchises to 
enable them to do public service, cannot give special rates to 
some men without doing injustice to other men; and that 
the common right of the people demands equality of f acihty 
and of cost in the transportation which the railroads are 
bound to furnish, and condemns special privileges to one as 
against another. The lesson of all this is that the prosecu- 
tions and convictions for violation of the anti-rebate law — 



THE CITIZEN'S PART IN GOVERNMENT 67 

things which were never heard of thirty years ago — are not 
evidence that we are growing worse, but evidence that we 
are growing better; that our Government is applying a 
higher standard of justice in the control of public utilities. 

The same is true of the management of corporations 
and the manipulation of securities, to which attention has 
recently been called sharply by the testimony before the 
Interstate Commerce Commission regarding the reorganiza- 
tion of the Chicago and Alton Railroad. Thirty or forty 
years ago, when the management of the Erie Railroad and 
the Atlantic and Great Western and the Union Pacific Rail- 
road attracted public attention, the things done by corporate 
managers were so much worse that the Chicago and Alton 
affair would not have received any notice at all. The railroad 
wrecker was a common type of railroad manager. A large 
part of our people assumed that to be a permissible game to 
play, and the rules of the game did not go much beyond the 
exclusion of ordinary forgery, larceny, and fraud at common 
law. Since then a higher standard is asserting itseK, which 
recognizes the scrupulous obligation of trusteeship on the 
part of the railroad manager and promoter, and under that 
standard much is properly condemned which before would 
have passed without notice. It is perfectly safe to assert 
that the standard of probity and fidelity among the corpora- 
tion managers of the country is higher now than it ever has 
been before; and yet there is more complaint now than there 
ever has been before, because our people demand that a 
more rigid rule of morality shall be applied by statute and 
by the courts and in administrative supervision than they 
formerly considered necessary. 

The prosecutions which the Departments of the Interior 
and of Justice have been conducting against the land thieves 
in the West — the men who have been appropriating to 
themselves the public timber lands and grazing lands and 



68 GOVERNMENT AND CITIZENSHIP 

coal lands — have awakened intense indignation among the 
defendants and their friends, because the wrong was so 
inveterate that they had come to look upon it as a right. For 
more than a generation it had been regarded as a natural 
and unobjectionable thing to get possession of the public land 
by hook or by crook; and when the officers of the law pre- 
sented and enforced the novel idea that it was as dishonest 
to deprive the Government of its land illegally as to deprive 
an individual of his land illegally, it seemed a cruel injustice. 
There was simply a little advance of the moral standard 
which gave life to laws that had been dead before. The 
whole system of the Federal Government has been lifted up 
to a higher plane of clearer moral vision, just as the whole 
system of British administration has been lifted up since the 
corrupt days of Walpole. 

The elective franchise has become a more honest expression 
of popular will. Only men who are now growing old can 
remember, and history has not yet adequately recorded, the 
gross frauds, the tricks and devices, and acts of violence 
which prevented fair elections forty-odd years ago, before 
the federal election laws of 1870 and 1871 — laws which 
have passed out of existence, but have left their impress 
upon the legislation of the States of the Union. In those 
days, before there was any registration of voters, the way- 
faring man could vote the resident out of house and home, 
and the count of votes was at the mercy of anybody who 
could succeed in buying a local election officer. The ballots 
with which to vote were furnished only by the local party 
organization, and were printed and folded and bunched and 
distributed by the workers of each party. I have known the 
voters of a congressional district to go to the polls on elec- 
tion day and find all the congressional ballots distributed 
for one candidate, and none to be obtained for the other 
candidate, because the local leader on one side had been 



THE CITIZEN'S PART IN GOVERNMENT 69 

bought by the other side. I have seen a file of men marched 
out of a tramp lodging house with their ballots held aloft in 
one hand continuously in plain sight until they had deposited 
them in the ballot box, in order to give the necessary evidence 
that they were voting according to the contract under which 
they were immediately thereafter to be paid. Now, the 
system of registration and the revision of the registry lists are 
substantially effective to confine voting to the qualified 
voters. The ballot is furnished by the state; the method of 
voting upon the Australian ballot in all its forms, by mark- 
ing it in secret, makes bribery uncertain and unprofitable, 
because it is impossible to tell how any one votes, and the 
man who would take money for his vote cannot be depended 
upon to vote as he has agreed. Both the voting and the 
counting are protected by adequate supervision and full 
opportunity for watchers in the interest of the candidates 
and of the different parties. The change from dishonest and 
unfair elections to honest and fair elections is fundamental 
to the successful working of popular government and is in 
the course of ordinary and natural political development. It 
is the same kind of change which has taken place in England 
since the days before the Reform Bill of 1832; and that it is 
permanently effective we may be sure, because it is the 
natural course of political development here, as it has been 
in England. 

I need not describe the growth, the maintenance, the sys- 
tematic regulation, and eflSciency of public and private 
charities, of public and private institutions for education, 
for the diffusion of knowledge, for the prosecution of scientific 
research and experiment, and for the encouragement of art 
— the enormous sums of money applied to these pin-poses, 
the active and unwearying efforts of multitudes of men and 
women devoted to them; for these are a part of the daily life 
of every American community. They show an advance in 



70 GOVERNMENT AND CITIZENSHIP 

public intelligence and moral qualities working through that 
associated effort which is essential to government, and to 
which government is essential; and they justify the expec- 
tation of continued advancement in the future. 

The fact that American popular government now has 
serious and difficult questions to deal with is no just cause 
for distrust. Government always has difficult questions to 
deal with, and we are assured by the advance already made 
of democracy's competency in the future. The great ques- 
tions of capital and labor, of concentrated corporate wealth, 
and of diffused and general well-being, are merely natural 
incidents to progress. 

The inventions and discoveries of the last century, the 
appKcations of science to useful arts, have enormously in- 
creased the productive power and therefore the wealth of 
mankind. By the use of machinery and newly devised pro- 
cesses the same number of men can produce, in manufactiu'e 
and in agriculture, a far greater quantity and variety of the 
objects which contribute to the necessities, the comfort, 
and the pleasures of man than in former years. Unsus- 
pected riches of the earth have been revealed and appro- 
priated. Facihties for transportation have given a value to 
products which would once have been worthless because not 
needed at the point of production and not available for use 
elsewhere. 

We are now witnessing the natural and inevitable struggle 
for a fair division of this new and rapidly increasing wealth. 
The ideal distribution would be that the inventor and dis- 
coverer, the organizing and directing intelligence and energy, 
should have a fair share for their contribution; that the 
capitahst should have a fair share for the use of his money 
and the risk which he incurs, measured by the chances of 
loss which so frequently turn against him; that the wage- 
worker should have his fair share in increase of wages and 



THE CITIZEN'S PART IN GOVERNMENT 71 

decrease in hours of labor, because he produces so much 
more by his labor than he formerly did; and that the con- 
sumers should have their fair share in decrease of price of 
the objects which are produced with so much less expense 
and effort. 

It is inevitable that each one of these classes should differ 
from all the others as to the share to which it is entitled, 
and that there should be a continual struggle between them 
in the process of adjustment leading to a fair division. That 
process and that struggle will continue so long as wealth 
continues to increase. 

One inevitable incident of this process is that at the outset 
some of these classes will get more than their share, and these 
are usually the organizer and the capitalist, because they 
have the advantage of initial position in respect of each new 
increment of wealth; so that the struggle ordinarily takes the 
form of demands by the wage-workers and the consumers 
to increase their shares of the new wealth at the expense of 
the capitalists and the organizers. Another incident of the 
process is that the laws framed to meet one set of conditions 
are constantly being found to need modification in order to 
insure just distribution of wealth and just rewards of intelli- 
gence, skill, and industry under the new conditions brought 
about by industrial progress. We are constantly finding 
that laws formerly adequate, when applied to new conditions 
permit some men to get lawfully more than is fair, while 
others cannot get lawfully as much as their fair share out of 
the industrial activity to which the whole community contrib- 
utes in varying ways and degrees. For example, the laws 
relating to corporate organization, capitalization, consolida- 
tion, reorganization, and extension, which formerly served 
their purpose very well, are now seen to make it possible for 
some men who get into corporate control to make enormous 
fortunes without apparently violating any law, but for which 



72 GOVERNMENT AND CITIZENSHIP 

they render really no return whatever to the wealth of the 
community. Morally, the action of these men does not 
necessarily differ in kind from the action which always has 
prevailed in the business world, where men determine the 
price of their commodities rather by what they will bring in 
the market than by any estimate of the good they will do 
the purchasers. But these great transactions call attention 
sharply to the fact that the legal rules governing corporate 
business require to be changed so that unconscionable advan- 
tages cannot be lawfully obtained; and moreover such trans- 
actions are often accompanied by such suppressions of full 
information and disregard of fiduciary obligations as to show 
that the law needs to be strengthened in those directions. 

The facilities of transportation and communication which 
enable modern business to spread over a great expanse of 
territory have made it possible for so-called trusts and com- 
binations to be made for the piu-pose of driving out competi- 
tors, restricting production and increasing prices, for which 
the old and simple rules designed to prevent engrossing, 
forestalling, and regrating in the English rural community 
are quite inadequate; and new laws and new agencies for 
their enforcement are necessary to accomplish the same 
results. 

On the other hand, labor organizations, designed for the 
just purpose of securing fair treatment as to employment, 
wages, and hours and conditions of work, are on their part 
endeavoring to put up prices, restrict production, and drive 
out competition by stringent rules which prohibit any 
member from doing more than a specified amount of work 
each day under penalty of expulsion, and which prohibit the 
employment of any one not a member of the union under 
penalty of a strike. 

All of these things are but incidents of the process of 
adjustment in the division of the new wealth; some of them 



THE CITIZEN'S PART IN GOVERNMENT 73 

come from attempts to get what is fair and some of them from 
attempts to get more than is fair. Our popular government 
is dealing with them assiduously, by awakened public 
opinion gradually crystallizing into laws adapted to meet the 
new conditions. This process involves no new principles, 
but merely the adaptation of the same old principles of law 
with which our fathers were familiar. The things which are 
happening and the necessity for continual reform of law and 
administration argue no decline in business morality and no 
inadequacy of our political system to continue its efficacy 
and its improvement. 

There is occasionally imdue excitement; but it is tempo- 
rary, and whenever it is seen to approach the verge of 
destructive action it is promptly calmed and restrained by 
the sober judgment of the people. 

Some workingmen's associations hold meetings where 
violent speeches are made and carry red flags in processions; 
but so far, whenever a square issue is raised among any great 
and widespread body of laboring men between anarchy and 
socialism on one side and the principles which underlie the 
American social and industrial system on the other, the 
decision is in favor of good Americanism. The Secretary of 
Commerce and Labor informs me that within the last dozen 
years the percentage of socialists in the labor organizations 
of the United States has decreased from about thirty-three 
per cent to about eight per cent. I do not know to what 
extent this has been by change within the labor organiza- 
tions, or to what extent by separation of socialists from the 
organizations. However it has come about it indicates that 
so far the sober judgment of the great mass of the wage- 
workers of the United States is in favor of the conditions of 
their present prosperity as against socialism. 

In considering the efficiency of democratic institutions 
we must remember the millions of immigrants who have 



74 GOVERNMENT AND CITIZENSHIP 

come to us. Americans acquired habits of self-control and 
political capacity from several centuries of self-government 
in the American colonies and in the United States down to 
the middle of the nineteenth century, and from many cen- 
turies of political growth in England before the colonization 
of America. The vast mass of our immigrants, however, 
have come from countries in which there was but little 
political training or development among the people. Since 
1850 over twenty-one million immigrants have entered the 
United States. Most of these have come with the inherited 
tendencies, the traditions, and the acquired habits of hope- 
less submission to a superior external power, or of violent 
struggle against it, and with little, if any, preparation either 
of habit or understanding, for the performance of duties of 
government themselves; and they have had to be educated 
in mind and in character for self-government. 

By far the greater number of the violent and extreme 
agitators among the laboring men in the United States are 
the comparatively newly arrived immigrants, whose habits 
of thought and emotional attitude have been acquired in 
their former homes. I believe it to be true that, making due 
allowance for some individuals of the crank variety, and for 
some individuals who are really ordinary criminals with the 
shrewdness to carry on their war against society under color 
of philosophical theories, the tendency of the newcomer to 
violent socialistic or anarchistic denunciation is in inverse 
proportion to the amount of liberty he enjoyed before he 
came to this country; that it decreases in direct proportion 
to the length of time that he lives here and the extent to 
which he mingles with and becomes a part of the community; 
and that it tends strongly to disappear with the second 
generation which has had the opportunity to take in the 
impressions and influences of American life and education 
during the impressionable years of childhood. Few things 



THE CITIZEN'S PART IN GOVERNMENT 75 

in history are more impressive and extraordinary than the 
force and effect of American life and institutions upon all 
these millions of people who have come from all parts of the 
earth, sprung from all races, speaking all languages, believ- 
ing in all religions, and bringing with them all kinds of 
inherited characteristics and tendencies. 

Underlying our just hopes for the future efficiency and 
progress of our institutions lie the sound and wholesome 
character of our people as shown in their daily life; the 
widely diffused interest in the prosperity of the country 
shown in the comfort of living and the opportunities for 
advancement among the people of all callings down to the 
humblest; the widespread interest to maintain the rights 
of property, among the owners of the farms, which according 
to the last census numbered 5,739,657, and among the 
savings-bank depositors, who in the year 1906 numbered 
8,027,192, having an aggregate deposit of $3,482,137,198; 
the continual process of education under which during the 
school year ending June, 1906, there were instructed in the 
schools of the United States 18,434,847 scholars; the vast 
influence proceeding from our institutions of higher educa- 
tion — the universities and colleges and professional and 
technological schools — in which during the past year there 
were 210,333 students; and the freedom of religion under 
which all churches, separate from the state, prosper accord- 
ing to the measure in which they meet the religious needs of 
voluntary worship. More than all, our hopes must depend 
upon the general and active participation of the whole 
governing body of the American democracy in working out 
the problems and applying the principles of government with 
wisdom, with integrity, with just and kindly consideration 
for the rights of others — every citizen doing his full and 
manly duty for his country. The country's future, with its 
blessings or its misfortunes, with its happiness or its misery. 



76 GOVERNMENT AND CITIZENSHIP 

its progress or its decadence, depends upon all of us, and 
it depends upon each one of us. 

I commend to you as a guide to your duty of citizensliip 
these words of Lecky, the historian — not a rhetorician, but 
a discriminating and thoughtful student: 

All civic \artue, all the heroism and seK-sacrifice of patriotism spring 
ultimately from the habit men acquire of regarding their nation as a 
great organic whole, identif jong themselves with its fortunes in the past 
as in the present, and looking forward anxiously to its futrn-e destinies. 
When the members of any nation have come to regard their coimtry as 
nothing more than the plot of ground on which they reside, and their 
government as a mere organization for providing police or contracting 
treaties; when they have ceased to entertain any warmer feelings for one 
another than those which private interest, or personal friendship, or a 
mere general philanthropy, may produce, the moral dissolution of that 
nation is at hand. Even in the order of material interests the well-being 
of each generation is in a great degree dependent upon the forbearance, 
self-sacrifice, and pro\'idence of those who have preceded it, and civic 
virtues can never flourish in a generation which thinks only of itself. 



EXPERIMENTS IN GOVERNMENT 

AND 

THE ESSENTIALS 
OF THE CONSTITUTION 



THE STAFFORD LITTLE LECTURES AT PRINCETON 
UNIVERSITY, APRIL 15 AND 16, 1913 ^ 

PREFACE 

The familiar saying that nothing is settled until it is settled 
right expresses only a half-truth. Questions of general 
and permanent importance are seldom finally settled. A 
very wise man has said that " short of the multiplication 
table there is no truth and no fact which must not be proved 
over again as if it had never been proved, from time to time." 
Conceptions of social rights and obligations and the institu- 
tions based upon them continue unquestioned for long periods 
as postulates in all discussions upon questions of government. 
Whatever conduct conforms to them is assumed to be right. 
Whatever is at variance with them is assumed to be wrong. 
Then a time comes when, with apparent suddenness, the 
ground of discussion shifts and the postulates are denied. 
They cease to be accepted without proof and the whole 
controversy in which they were originally established is 
fought over again. 

The people of the United States appear now to have 
entered upon such a period of re-examination of their system 
of government. Not only are political parties denouncing 
old abuses and demanding new laws, but essential principles 
embodied in the Federal Constitution of 1787, and long 
followed in the constitutions of all the States, are questioned 
and denied. The wisdom of the founders of the Republic is 
disputed and the political ideas which they repudiated are 
urged for approval. 

1 wish in these lectures to present some observations which 
may have a useful application in the course of this process.^ 

^ These lectures were delivered at Princeton University, and were published 
and copyrighted by the Princeton University Press in the same year. The editors 
acknowledge the courtesy of the Princeton University Press in permitting their 
republication here, and take this method of expressing their appreciation. 

2 As originally delivered, these paragraphs were the introduction to the first 
lecture; as published by the Princeton University Press, they form a preface. 



EXPERIMENTS IN GOVERNMENT AND THE 
ESSENTIALS OF THE CONSTITUTION 



EXPERIMENTS IN GOVERNMENT 

THERE are two separate processes going on among the 
civilized nations at the present time. One is an assault 
by socialism against the individualism which underlies the 
social system of western civilization. The other is an assault 
against existing institutions upon the ground that they do 
not adequately protect and develop the existing social order. 
It is of this latter process in our own country that I wish to 
speak, and I assume an agreement, that the right of indi- 
vidual liberty and the inseparable right of private property 
which lie at the foundation of our modem civilization ought 
to be maintained. 

The conditions of life in America have changed very much 
since the Constitution of the United States was adopted. 
In 1787 each state entering into the Federal Union had pre- 
served the separate organic life of the original colony. Each 
had its center of social and business and p>olitical life. Each 
was separated from the others by the barriers of slow and 
difficult communication. In a vast territory, without rail- 
roads or steamships or telegraph or telephone, each com- 
munity lived within itself. 

Now, there has been a general social and industrial re- 
arrangement. Production and commerce pay no attention 
to state lines. The life of the country is no longer grouped 
about state capitals, but about the great centers of continen- 
tal production and trade. The organic growth which must 
ultimately determine the form of institutions has been away 



80 GOVERNMENT AND CITIZENSHIP 

from the mere miion of states towards the miion of mdi- 
viduals in the relation of national citizenship. 

The same causes have greatly reduced the independence 
of personal and family life. In the eighteenth century life 
was simple. The producer and consumer were near together 
and could find each other. Every one who had an equivalent 
to give in property or service could readily secure the support 
of himself and his family without asking anything from 
government except the preservation of order. Today almost 
all Americans are dependent upon the action of a great 
number of other persons mostly unknown. About half of 
our people are crowded into the cities and large towns. 
Their food, clothes, fuel, light, water — all come from dis- 
tant sources, of which they are in the main ignorant, through 
a vast, compUcated machinery of production and distribution 
with which they have little direct relation. If anything 
occurs to interfere with the working of the machinery, the 
consumer is individually helpless. To be certain that he and 
his family may continue to live he must seek the power of 
combination with others, and in the end he inevitably calls 
upon that great combination of all citizens which we call 
government to do something more than merely keep the 
peace — to regulate the machinery of production and dis- 
tribution and safeguard it from interference so that it shall 
continue to work. 

A similar change has taken place in the conditions under 
which a great part of our people engage in the industries by 
which they get their living. Under comparatively simple 
industrial conditions the relation between employer and em- 
ployee was mainly a relation of individual to individual with 
individual freedom of contract and freedom of opportunity 
essential to equality in the commerce of life. Now, in 
the great manufacturing, mining and transportation indus- 
tries of the country, instead of the free give and take of 



EXPERIMENTS IN GOVERNMENT 81 

individual contract there is substituted a vast system of 
collective bargaining between great masses of men organized 
and acting through their representatives, or the individual 
on the one side accepts what he can get from superior power 
on the other. In the movement of these mighty forces of 
organization the individual laborer, the individual stock- 
holder, the individual consumer, is helpless. 

There has been another change of conditions through the 
development of political organization. The theory of politi- 
cal activity which had its origin approximately in the 
administration of President Jackson, and which is charac- 
terized by Marcy's declaration that " to the victors belong 
the spoils," tended to make the possession of office the 
primary and all-absorbing purpose of political conflict. A 
complicated system of party organization and representation 
grew up under which a disciplined body of party workers in 
each state supported each other, controlled the machinery 
of nomination, and thus controlled nominations. The mem- 
bers of state legislatures and other officers, when elected, 
felt a more acute responsibility to the organization which 
could control their renomination than to the electors, and 
therefore became accustomed to shape their conduct accord- 
ing to the wishes of the nominating organization. Accord- 
ingly the real power of government came to be vested to a 
high degree in these unofficial political organizations, and 
where there was a strong man at the head of an organization 
his control came to be something very closely approaching 
dictatorship. Another feature of this system aggravated its 
evils. As population grew, political campaigns became more 
expensive. At the same time, as wealth grew, corporations 
for production and transportation increased in capital and 
extent of operations and became more dependent upon the 
protection or toleration of government. They found a ready 
means to secure this by contributing heavily to the cam- 



82 GOVERNMENT AND CITIZENSHIP 

paign funds of political organizations, and therefore their 
influence played a large part ia determining who should be 
nominated and elected to office. So that ia many states 
political organizations controlled the operations of govern- 
ment, in accordance with the wishes of the managers of the 
great corporations. Under these circumstances our govern- 
mental institutions were not working as they were intended 
to work, and a desire to break up and get away from this 
extra constitutional method of controlling our constitutional 
government has caused a great part of the new political 
methods of the last few years. 

It is manifest that the laws which were entirely adequate, 
under the conditions of a century ago, to secure individual 
and public welfare must be in many respects inadequate to 
accomplish the same results under aU these new conditions; 
and our people are now engaged in the difficult but imperative 
duty of adapting their laws to the life of today. The changes 
in conditions have come very rapidly and a good deal of 
experiment will be necessary to find out just what govern- 
ment can do and ought to do to meet them. 

The process of devising and trying new laws to meet new 
conditions naturally leads to the question whether we need 
not merely to make new laws but also to modify the principles 
upon which our government is based and the institutions of 
government designed for the application of those principles to 
the affairs of life. Upon this question it is of the utmost 
importance that we proceed with considerate wisdom. 

By institutions of government I mean the established rule 
or order of action through which the sovereign (in our case 
the sovereign people) attains the ends of government. The 
governmental institutions of Great Britain have been estab- 
lished by the growth through many centuries of a great body 
of accepted rules and customs which, taken together, are 
called the British Constitution, In this country we have set 



EXPERIMENTS IN GOVERNMENT 83 

forth in the Declaration of Independence the principles which 
we consider to He at the basis of civil society : " that all men 
are created equal, that they are endowed by their Creator 
with certain unalienable Rights, that among these are Life, 
Liberty and the pursuit of Happiness. That to secure these 
rights, Governments are instituted among Men, deriving their 
just powers from the consent of the governed." 

In our federal and state constitutions we have established 
the institutions through which these rights are to be secured. 
We have declared what officers shall make the laws, what 
officers shall execute them, what officers shall sit in judgment 
upon claims of right under them. We have prescribed how 
these officers shall be selected and the tenure by which they 
shall hold their offices. We have limited them in the powers 
which they are to exercise, and, where it has been deemed 
necessary, we have imposed specific duties upon them. The 
body of rules thus prescribed constitute the governmental 
institutions of the United States. 

When proposals are made to change these institutions 
there are certain general considerations which should be 
observed. 

The first consideration is that free government is impos- 
sible except through prescribed and established govern- 
mental institutions, which work out the ends of government 
through many separate human agents, each doing his part in 
obedience to law. Popular will cannot execute itself directly 
except through a mob. Popular will cannot get itself exe- 
cuted through an irresponsible executive, for that is simple 
autocracy. An executive limited only by the direct expres- 
sion of popular will cannot be held to responsibility against 
his will, because, having possession of all the p>owers of 
government, he can prevent any true, free, and general 
expression adverse to himself, and unless he yields volun- 
tarily he can be overturned only by a revolution. The 



84 GOVERNMENT AND CITIZENSHIP 

familiar Spanish-American dictatorships are illustrations of 
this. A dictator once established by what is or is alleged to 
be public choice never permits an expression of public wiU 
which will displace him, and he goes out only through a new 
revolution because he alone controls the machinery through 
which he could be displaced peaceably. A system with a 
plebiscite at one end and Louis Napoleon at the other could 
not give France free government; and it was only after the 
humiliation of defeat in a great war and the horrors of the 
Commune that the French people were able to estabHsh 
a government which would really execute their will through 
carefully devised institutions in which they gave their chief 
executive very little power indeed. 

We should, therefore, reject every proposal which involves 
the idea that the people can rule merely by voting, or merely 
by voting and having one man or group of men to execute 
their will. 

A second consideration is that in estimating the value of 
any system of governmental institutions due regard must be 
had to the true functions of government and to the limita- 
tions imposed by nature upon what it is possible for govern- 
ment to accomplish. We all know of course that we cannot 
abolish all the evils in this world by statute or by the en- 
forcement of statutes, nor can we prevent the inexorable 
law of nature which decrees that suffering shaU follow vice, 
and aU the evil passions and foUy of mankind. Law cannot 
give to depravity the rewards of virtue, to indolence the 
rewards of industry, to indifference the rewards of ambition, 
or to ignorance the rewards of learning. The utmost that 
government can do is measurably to protect men, not against 
the wrong they do themselves but against wrong done by 
others, and to promote the long, slow process of educating 
mind and character to a better knowledge and nobler stand- 
ards of life and conduct. We know all this, but when we see 



EXPERIMENTS IN GOVERNMENT 85 

how much misery there is in the world and instinctively cry- 
out against it, and when we see some things that government 
may do to mitigate it, we are apt to forget how little after 
all it is possible for any government to do, and to hold the 
particular government of the time and place to a standard 
of responsibility which no government can possibly meet. 
The chief motive power which has moved mankind along 
the course of development which we call the progress of 
civilization has been the sum total of intelligent selfishness 
in a vast number of individuals, each working for his own 
support, his own gain, his own betterment. It is that which 
has cleared the forests and cultivated the fields and built the 
ships and railroads, made the discoveries and inventions, 
covered the earth with commerce, softened by intercourse the 
enmities of nations and races, and made possible the wonders 
of literature and of art. Gradually, during the long process, 
selfishness has grown more intelligent, with a broader view 
of individual benefit from the common good, and gradually 
the influences of nobler standards of altruism, of justice, and 
human sympathy have impressed themselves upon the con- 
ception of right conduct among civilized men. But the com- 
plete control of such motives will be the millennium. Any 
attempt to enforce a millennial standard now by law must 
necessarily fail, and any judgment which assumes govern- 
ment's responsibility to enforce such a standard must be an 
unjust judgment. Indeed, no such standard can ever be 
forced. It must come, not by superior force, but from the 
changed nature of man, from his willingness to be altogether 
just and merciful. 

A third consideration is that it is not merely useless but 
injurious for government to attempt too much. It is mani- 
fest that to enable it to deal with the new conditions I have 
described we must invest government with authority to 
interfere with the individual conduct of the citizen to a 



86 GOVERNMENT AND CITIZENSHIP 

degree hitherto unknown in this country. When govern- 
ment undertakes to give the individual citizen protection by 
regulating the conduct of others towards him in the field 
where formerly he protected himself by his freedom of con- 
tract, it is limiting the liberty of the citizen whose conduct 
is regulated and taking a step in the direction of paternal 
government. While the new conditions of industrial life 
make it plainly necessary that many such steps shall be 
taken, they should be taken only so far as they are necessary 
and are effective. Interference with individual Hberty by 
government should be jealously watched and restrained, 
because the habit of undue interference destroys that inde- 
pendence of character without which in its citizens no free 
government can endure. 

We should not forget that while institutions receive their 
form from national character they have a powerful reflex 
influence upon that character. Just so far as a nation 
allows its institutions to be moulded by its weaknesses of 
character rather than by its strength it creates an influence 
to increase weakness at the expense of strength. 

The habit of undue interference by government in private 
affairs breeds the habit of undue reliance upon government in 
private affairs at the expense of individual initiative, energy, 
enterprise, courage, independent manhood. 

The strength of self-government and the motive power of 
progress must be found in the characters of the individual 
citizens who make up a nation. Weaken individual character 
among a people by comfortable reliance upon paternal 
government and a nation soon becomes incapable of free 
self-government and fit only to be governed : the higher and 
nobler qualities of national life that make for ideals and effort 
and achievement become atrophied and thenationisdecadent. 

A fourth consideration is that in the nature of things all 
government must be imperfect because men are imperfect. 



EXPERIMENTS IN GOVERNMENT 87 

Every system has its shortcomings and inconveniences; and 
these are seen and felt as they exist in the system under 
which we live, while the shortcomings and inconveniences of 
other systems are forgotten or ignored. 

It is not miusual to see governmental methods reformed 
and after a time, long enough to forget the evils that caused 
the change, to have a new movement for a reform which 
consists in changing back to substantially the same old 
methods that were cast out by the first reform. 

The recognition of shortcomings or inconveniences in 
government is not by itself sufficient to warrant a change of 
system. There should be also an effort to estimate and 
compare the short-comings and inconveniences of the system 
to be substituted, for although they may be different they 
will certainly exist. 

A fifth consideration is that whatever changes in govern- 
ment ought to be made, we should follow the method which 
undertakes as one of its cardinal points to hold fast that 
which is good. Francis Lieber, whose affection for the 
country of his birth equalled his loyalty to the country of 
his adoption, once said: 

There is this difference between the English, French, and Germans: 
that the English only change what is necessary and as far as it is neces- 
sary; the French plunge into all sorts of novelties by whole masses, get 
into a chaos, see that they are fools and retrace their steps as quickly, 
with a high degree of practical sense in all this unpracticabihty; the 
Germans attempt no change without first recurring to first principles 
and metaphysics beyond them, systematizing the smallest details in their 
minds; and when at last they mean to apply all their meditation, oppor- 
timity, with its wide and swift wings of a gull, is gone.^ 

This was written more than sixty years ago before the 
present French Republic and the present German Empire, 
and Lieber would doubtless have modified his conclusions 

* Life and Letters of Francis Lieber, Edited by Thomas Sergeant Perry, Boston, 
1882, p. 247, "Letter to G. S. Hillard, January 5, 1851." 



88 GOVERNMENT AND CITIZENSHIP 

in view of those great achievements in government if he 
were writing today. But he does correctly indicate the 
differences of method and the dangers avoided by the practi- 
cal course which he ascribes to the English and in accordance 
with which the great structure of British and American hberty 
has been built up generation after generation and century 
after century. Through all the seven hundred years since 
Magna Charta we have been shaping, adjusting, adapting 
our system to the new conditions of life as they have arisen, 
but we have always held on to everything essentially good 
that we have ever had in the system. We have never imder- 
taken to begin over again and build up a new system under 
the idea that we could do it better. We have never let go of 
Magna Charta or the Bill of Rights or the Declaration of 
Independence or the Constitution. When we take account 
of aU that governments have sought to do and have failed 
to do in this selfish and sinful world, we find that as a rule 
the apphcation of new theories of government, though de- 
vised by the most brilliant constructive genius, have availed 
but little to preserve the people of any considerable regions 
of the earth for any long periods from the evils of despotism 
on the one hand or of anarchy on the other, or to raise any 
considerable portion of the mass of mankind above the hard 
conditions of oppression and misery. And we find that our 
system of government which has been built up in this 
practical way through so many centuries, and the whole 
history of which is potent in the provisions of our Constitu- 
tion, has done more to preserve liberty, justice, security, 
and freedom of opportunity for many people for a long 
period and over a great portion of the earth, than any other 
system of government ever devised by man. Human nature 
does not change very much. The forces of evil are hard to 
control now as they always have been. It is easy to fail and 
hard to succeed in reconciling liberty and order. In dealing 



EXPERIMENTS IN GOVERNMENT 89 

with this most successful body of governmental institutions 
the question should not be what sort of government do you 
or I think we should have. What you and I think on such 
a subject is of very little value indeed. The question should 
be: How can we adapt our laws and the workings of our 
government to the new conditions which confront us with- 
out sacrificing any essential element of this system of govern- 
ment which has so nobly stood the test of time and without 
abandoning the jwlitical principles which have inspired the 
growth of its institutions ? For there are political principles, 
and nothing can be more fatal to self-government than to 
lose sight of them under the influence of apparent expediency. 
In attempting to answer this question we need not trouble 
ourselves very much about the multitude of excited contro- 
versies which have arisen over new methods of extra con- 
stitutional-political organization and procedure. Direct 
nominations, party enrollments, instructions to delegates, 
presidential preference primaries, independent nominations, 
all relate to forms of voluntary action outside the proper 
field of governmental institutions. All these new political 
methods are the result of efforts of the rank and file of volun- 
tary parties to avoid being controlled by the agents of their 
own party organization, and to get away from real evils in 
the form of undue control by organized minorities with the 
support of organized capital. None of these expedients is 
an end in itself. They are tentative, experimental. They 
are movements not towards something definite but away 
from something definite. They may be inconvenient or dis- 
tasteful to some of us, but no one need be seriously disturbed 
by the idea that they threaten our system of government. 
If they work well they will be an advantage. If they work 
badly they will be abandoned and some other expedient will 
be tried, and the ultimate outcome will doubtless be an 
improvement upon the old methods. 



90 GOVERNMENT AND CITIZENSHIP 

There is another class of new methods which do relate to 
the structure of government and which call for more serious 
consideration here. Chief in this class are: 

The Initiative; that is to say, direct legislation by vote 
of the people upon laws proposed by a specified number or 
proportion of the electors. 

The Compulsory Referendum; that is to say, a requirement 
that under certain conditions laws that have been agreed 
upon by a legislative body shall be referred to a popular vote 
and become operative only upon receiving a majority vote. 

The Recall of Officers before the expiration of the terms 
for which they have been elected, by a vote of the electors, 
to be had upon the demand of a specified number or propor- 
tion of them. 

The Popular Review of Judicial Decisions upyon consti- 
tutional questions; that is to say, a provision imder which, 
when a court of last resort has decided that a particular law is 
invalid, because in conflict with a constitutional provision, 
the law may nevertheless be made valid by a popular vote. 

Some of these methods have been made a part of the con- 
stitutional system of a considerable number of our states. 
They have been accompanied invariably by provisions for 
very short and easy changes of state constitutions, and, so 
long as they are confined to the particular states which have 
chosen to adopt them, they may be regarded as experiments 
which we may watch with interest, whatever may be our 
opinions as to the outcome, and with the expectation that if 
they do not work well they also wiU be abandoned. This is 
especially true because, since the adoption of the Fourteenth 
Amendment to the Constitution, the states are prohibited 
from violating in their own affairs the most important prin- 
ciples of the National Constitution. It is not to be expected, 
however, that new methods and rules of action in govern- 
ment shall become universal in the states and not ultimately 



EXPERIMENTS IN GOVERNMENT 91 

bring about a change in the national system. It will be 
useful, therefore, to consider whether these new methods if 
carried into the national system would sacrifice any of the 
essentials of that system which ought to be preserved. 

The Constitution of the United States deals in the main 
with essentials. There are some non-essential directions 
such as those relating to the methods of election and of 
legislation, but in the main it sets forth the foundations of 
government in clear, simple, concise terms. It is for this 
reason that it has stood the test of more than a century with 
but slight amendment, while the modern state constitutions, 
into which a multitude of ordinary statutory provisions are 
crowded, have to be changed from year to year. The 
peculiar and essential qualities of the government established 
by the Constitution are: 

First, it is representative. 

Second, it recognizes the liberty of the individual citizen 
as distinguished from the total mass of citizens, and it pro- 
tects that liberty by specific limitations upon the power of 
government. 

Third, it distributes the legislative, executive and judicial 
powers, which make up the sum total of all government, into 
three separate departments, and specifically limits the powers 
of the officers in each department. 

Fourth, it superimposes upon a federation of state gov- 
ernments, a national government with sovereignty acting 
directly not merely upon the states, but upon the citizens of 
each state, within a line of limitation drawn between the 
powers of the national government and the powers of the 
state governments. 

Fifth, it makes observance of its limitations requisite to 
the validity of laws, whether passed by the nation or by the 
states, to be judged by the courts of law in each concrete 
case as it arises. 



92 GOVERNMENT AND CITIZENSHIP 

Every one of these five characteristics of the government 
established by the Constitution was a distinct advance 
beyond the ancient attempts at popular government, and the 
elimination of any one of them would be a retrograde move- 
ment and a reversion to a former and discarded type of 
government. In each case it would be the abandonment of 
a distinctive feature of government which has succeeded, in 
order to go back and try again the methods of government 
which have failed. Of course we ought not to take such a 
backward step except under the pressure of inevitable 
necessity. 

The first two of the characteristics which I have enumer- 
ated, those which embrace the conception of representative 
government and the conception of individual Hberty, were 
the products of the long process of development of free- 
dom in England and America. They were not invented 
by the makers of the Constitution. They have been caUed 
inventions of the Anglo-Saxon race. They are the chief 
contributions of that race to the political development of 
civilization. 

The expedient of representation first found its beginning 
in the Saxon witenagemoL It was lost in the Norman con- 
quest. It was restored step by step, through the centuries 
in which Parliament established its power as an institution 
through the granting or withholding of aids and taxes for the 
king's use. It was brought to America by the EngHsh 
colonists. It was the practice of the colonies which formed 
the Federal Union. It entered into the Constitution as a 
matter of course, because it was the method by which modern 
liberty had been steadily growing stronger and broader for 
six centuries as opposed to the direct, unrepresentative 
method of government in which the Greek and Roman and 
Italian republics had failed. This representative system has 
in its turn impressed itseK upon the nations which derived 



EXPERIMENTS IN GOVERNMENT 93 

their political ideas from Rome, and has aflForded the method 
through which popular liberty has been winning forward in 
its struggle against royal and aristocratic power and privilege 
the world over. Bluntschli, the great Heidelberg publicist 
of the last century, says : 

Representative government and self-government are the great works 
of the English and American peoples. The English have produced repre- 
sentative monarchy with parhamentary legislation and parliamentary 
government. The Americans have produced the representative repubhc. 
We Europeans upon the Continent recognize in our turn that in repre- 
sentative government alone lies the hoped-for union between civil order 
and popular liberty.^ 

The initiative and compulsory referendum are attempts 
to cure the evils which have developed in our practice of 
representative government by means of a return to the old, 
unsuccessful, and discarded method of direct legislation and 
by rehabilitating one of the most impracticable of Rousseau's 
theories. Every candid student of our governmental affairs 
must agree that the evils to be cured have been real and that 
the motive which has prompted the proposal of the initiative 
and referendum is commendable. I do not think that these 
expedients will prove wise or successful ways of curing these 
evils for reasons which I will presently indicate; but it is not 
necessary to assume that their trial will be destructive of our 
system of government. They do not aim to destroy repre- 
sentative government, but to modify and control it, and were 
it not that the effect of these particular methods is likely 
to go beyond the intention of their advocates they would 
not interfere seriously with representative government except 
in so far as they might ultimately prove to be successful 
expedients. If they did not work satisfactorily they would 
be abandoned, leaving representative government still in full 
force and effectiveness. 

^ J. C. Bluntschli's Introduction to the Miscellaneous Writings of Francis Lieher, 
Vol. II, p. 12. 



94 GOVERNMENT AND CITIZENSHIP 

There is now a limited use of the referendum upon certain 
comparatively simple questions. No one has ever success- 
fully controverted the view expressed by Burke in his letter 
to the electors of Bristol, that his constituents were entitled 
not merely to his vote but to his judgment, even though 
they might not agree with it. But there are some questions 
upon which the determining fact must be the preference of 
the people of the country or of a community; such as the 
question where a capital city or a county seat shall be 
located; the question whether a debt shall be inciured that 
will be a lien on their property for a specific purpose; the 
question whether the sale of intoxicating liquors shall be 
permitted. Upon certain great simple questions which are 
susceptible of a yes or no answer it is appropriate that the 
people should be called upon to express their wish by a vote 
just as they express their choice of the persons who shall 
exercise the powers of government by a vote. This, how- 
ever, is very diifferent from undertaking to have the ordinary 
powers of legislation exercised at the ballot box. 

In this field the weakness, both of the initiative and of 
the compulsory referendum, is that they are based upon a 
radical error as to what constitutes the true difficulty of wise 
legislation. The difficulty is not to determine what ought 
to be accomplished but to determine how to accomphsh it. 
The affairs with which statutes have to deal as a rule involve 
the working of a great number and variety of motives inci- 
dent to human nature, and the working of those motives 
depends upon complicated and often obscure facts of pro- 
duction, trade, social life, with which men generally are not 
familiar and which require study and investigation to under- 
stand. Thrusting a rigid prohibition or command into the 
operation of these forces is apt to produce quite unex- 
pected and unintended results. Moreover, we already have 
a great body of laws, both statutory and customary, and a 



EXPERIMENTS IN GOVERNMENT 95 

great body of judicial decisions as to the meaning and effect 
of existing laws. The result of adding a new law to this 
existing body of laws is that we get, not the simple conse- 
quence which the words, taken by themselves, would seem 
to require, but a resultant of forces from the new law taken 
in connection with all existing laws. A very large part of 
the litigation, injustice, dissatisfaction, and contempt for law 
which we deplore, results from ignorant and inconsiderate 
legislation with perfectly good intentions. The only safe- 
guard against such evils and the only method by which 
intelligent legislation can be reached is the method of full 
discussion, comparison of views, modification and amend- 
ment of proposed legislation in the light of discussion and the 
contribution and conflict of many minds. This process can 
be had only through the procedure of representative legis- 
lative bodies. Representative government is something 
more than a device to enable the people to have their say 
when they are too numerous to get together and say it. It 
is something more than the employment of experts in legis- 
lation. Through legislative procedure a different kind of 
treatment for legislative questions is secured by concentra- 
tion of responsibility, by discussion, and by opportunity to 
meet objection with amendment. For this reason the 
attempt to legislate by calling upon the people by popular 
vote to say yes or no to complicated statutes must prove 
unsatisfactory and on the whole injurious. In ordinary cases 
the voters will not and cannot possibly bring to the con- 
sideration of proposed statutes the time, attention, and 
knowledge required to determine whether such statutes will 
accomplish what they are intended to accomplish; and the 
vote usually will turn upon the avowed intention of such 
proposals rather than upon their adequacy to give effect to 
the intention. This would be true if only one statute were 
to be considered at one election; but such simplicity is not 



96 GOVERNMENT AND CITIZENSHIP 

practicable. There always will be, and if the direct system 
is to amount to anything there must be, many proposals 
urged upon the voters at each opportunity. 

The measures submitted at one time in some of the 
western states now fill considerable volumes. 

With each proposal the voter's task becomes more com- 
plicated and difficult. 

Yet our ballots are already too complicated. The great 
blanket sheets with scores of officers and hundreds of names 
to be marked are quite beyond the inteUigent action in detail 
of nine men out of ten. 

The most thoughtful reformers are already urging that 
the voter's task be made more simple by giving him fewer 
things to consider and act upon at the same time. 

This is the substance of what is called the Short B allot 
reform; and it is right, for the more questions divide pubhc 
attention the fewer questions the voters reaUy decide for 
themselves on their own judgment and the greater the 
power of the professional pohtician. 

There is moreover a serious danger to be apprehended 
from the attempt at legislation by the initiative and com- 
pulsory referendum, arising from its probable effect on the 
character of representative bodies. These expedients result 
from distrust of legislatures. They are based on the assertion 
that the people are not faithfully represented in their legis- 
lative bodies, but are misrepresented. The same distrust has 
led to the encumbering of modem state constitutions by a 
great variety of minute limitations upon legislative power. 
Many of these constitutions, instead of being simple frame- 
work of government, are bulky and detailed statutes legislat- 
ing upon subjects which the people are unwilling to trust the 
legislature to deal with. So between the new constitutions, 
which exclude the legislatures from power, and the referen- 
dum, by which the people overrule what they do, and the 



EXPERIMENTS IN GOVERNMENT 97 

initiative, by which the people legislate in their place, the 
legislative representatives who were formerly honored, are 
hampered, shorn of power, relieved of responsibility, dis- 
credited, and treated as unworthy of confidence. The 
unfortunate effect of such treatment upon the character of 
legislatures and the kind of men who will be willing to serve 
in them can well be imagined. It is the influence of such 
treatment that threatens representative institutions in our 
country. Granting that there have been evils in our legis- 
lative system which ought to be cured, I cannot think that 
this is the right way to cure them. It would seem that the 
true way is for the people of the country to address them- 
selves to the better performance of their own duty in select- 
ing their legislative representatives and in holding those 
representatives to strict responsibility for their action. The 
system of direct nominations, which is easy of application in 
the simple proceeding of selecting members of a legislature, 
and the short ballot reform aim at accomplishing that result. 
I think that along these lines the true remedy is to be found. 
No system of self-government will continue successful unless 
the voters have sufficient public spirit to perform their own 
duty at the polls, and the attempt to reform government by 
escaping from the duty of selecting honest and capable 
representatives, under the idea that the same voters who 
fail to perform that duty will faithfully perform the far more 
onerous and difficult duty of legislation, seems an exhibition 
of weakness rather than of progress. 



98 GOVERNMENT AND dTIZENSHIP 

n 

ESSENTIALS OF THE CONSTITUTION 

In the first of these lectures I specified certain essential 
characteristics of our system of government, and discussed 
the preservation of the first — its representative character. 
The four other characteristics specified have one feature in 
common. They aU aim to preserve rights by Hmiting power. 

Of these the most fundamental is the preservation in our 
Constitution of the Anglo-Saxon idea of individual Hberty. 
The repubhcs of Greece and Rome had no such conception. 
All political ideas necessarily concern man as a social animal, 
as a member of society — a member of the state. The 
ancient repubhcs, however, put the state first and regarded 
the individual only as a member of the state. They had in 
view the pubhc rights of the state in which all its members 
shared, and the rights of the members as parts of the whole, 
but they did not think of individuals as having rights inde- 
pendent of the state, or against the state. They never 
escaped from the attitude towards pubhc and individual civil 
rights, which was dictated by the original and ever-present 
necessity of military organization and defense. 

The Anglo-Saxon idea, on the other hand, looked first to 
the indi\ddual. In the early days of Enghsh history, without 
theorizing much upon the subject, the Anglo-Saxons began 
to work out their political institutions along the line expressed 
in our Declaration of Independence, that the individual citi- 
zen has certain inahenable rights — the right to life, to 
liberty, to the pursuit of happiness, and that government is 
not the source of these rights, but is the instrument for the 
preservation and promotion of them. So when a century 
and a half after the Conquest the barons of England set 
themselves to limit the power of the crown they did not 



ESSENTIALS OF THE CONSTITUTION 99 

demand a grant of rights. They asserted the rights of 
individual freedom and demanded observance of them, and 
they laid the corner stone of our system of government in 
this solenm pledge of the Great Charter: 

No freeman shall be taken, or imprisoned, or be disseized of his free- 
hold, or his liberties, or his free customs, or be outlawed, or exiled, or 
otherwise destroyed, but by the lawful judgment of his peers, or by the 
law of the land. 

Again and again in the repeated confirmations of the Great 
Charter, in the Petition of Rights, in the Habeas Corpus 
Act, in the Bill of Rights, in the Massachusetts Body of 
Liberties, in the Virginia Bill of Rights, and, finally, in the 
immortal Declaration of 1776 — in all the great utterances 
of striving for broader freedom which have marked the 
development of modem liberty, sounds the same dominant 
note of insistence upon the inalienable right of individual 
manhood under government but independent of government, 
and, if need be, against government, to life and liberty. 

It is impossible to overestimate the importance of the con- 
sequences which followed from these two distinct and 
opposed theories of government. The one gave us the 
dominion, but also the decline and fall, of Rome. It followed 
the French Declaration of the Rights of Man, with the nega- 
tion of those rights in the oppression of the Reign of Terror, 
the despotism of Napoleon, the popular submission to the 
Second Empire and the subservience of the individual citizen 
to official superiority which still prevails so widely on the 
continent of Europe. The tremendous potency of the other 
subdued the victorious Normans to the conquered Saxon's 
conception of justice, rejected the claims of divine right by 
the Stuarts, established capacity for self-government upon the 
independence of individual character that knows no supe- 
rior but the law, and supplied the amazing formative power 
which has moulded, according to the course and practice 



100 GOVERNMENT AND CITIZENSHIP 

of the common law, tlie thought and custom of the hundred 
millions of men drawn from all lands and all races who 
inhabit this continent north of the Rio Grande. 

The mere declaration of a principle, however, is of little 
avail unless it be supported by practical and specific rules 
of conduct through which the principle shall receive effect. 
So Magna Charta imposed specific hmitations upon royal 
authority to the end that individual hberty might be pre- 
served, and so to the same end our Declaration of Inde- 
pendence was followed by those great rules of right conduct 
which we call the limitations of the Constitution. Magna 
Charta imposed its limitations upon the kings of England 
and all their oflficers and agents. Our Constitution imposed 
its Hmitations upon the sovereign people and all their officers 
and agents, excluding all the agencies of popular govern- 
ment from authority to do the particular things which would 
destroy or impair the declared inahenable right of the 
individual. 

Thus the Constitution provides: No law shall be made by 
Congress prohibiting the free exercise of rehgion, or abridg- 
ing the freedom of speech or of the press. The right of the 
people to keep and bear arms shall not be infringed. The 
right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and 
seizures, shall not be violated. No person shall be subject 
for the same offense to be twice put in jeopardy of life or 
limb; nor be compelled, in any criminal case, to be a witness 
against himself; nor be deprived of life, Kberty, or property 
without due process of law; nor shall private property be 
taken for pubUc use without just compensation. In all 
criminal prosecutions, the accused shall enjoy the right to a 
speedy and pubHc trial, by an impartial jury of the state and 
district wherein the crime shall have been committed; and 
to be informed of the nature and cause of the accusation, to 



ESSENTIALS OF THE CONSTITUTION 101 

be confronted with the witnesses against him, to have com- 
pulsory process for obtaining witnesses in his favor, and to 
have the assistance of counsel for his defense. Excessive 
bail shall not be required, nor excessive fines imposed, nor 
cruel and unusual punishment inflicted. The privilege of the 
writ of habeas corpus shall not be suspended, except in case 
of rebellion or invasion. No bill of attainder or ex 'post facto 
law shall be passed. And by the Fourteenth Amendment, 
no state shall deprive any person of life, liberty, or property, 
without due process of law; nor deny to any person within 
its jurisdiction the equal protection of the law. 

We have lived so long under the protection of these rules 
that most of us have forgotten their importance. They have 
been unquestioned in America so long that most of us 
have forgotten the reasons for them. But if we lose them we 
shall learn the reasons by hard experience. And we are in 
some danger of losing them, not all at once but gradually, 
by indifference. 

As Professor Sohm says, " The greatest and most far- 
reaching revolutions in history are not consciously observed 
at the time of their occurrence." ^ 

Every one of these provisions has a history. Every one 
stops a way through which the overwhelming power of 
government has oppressed the weak individual citizen, and 
may do so again if the way be opened. Such provisions as 
these are not mere commands. They withhold power. The 
instant any oflBcer, of whatever kind or grade, transgresses 
them he ceases to act as an officer. The power of sovereignty 
no longer supports him. The majesty of the law no longer 
gives him authority. The shield of the law no longer pro- 
tects him. He becomes a trespasser, a despoiler, a law- 
breaker, and all the machinery of the law may be set in 

* The Institutes, by Rudolph Sohm, professor of German law in the University 
of Leipzig, translated by James Crawford Ledlie, 2d ed., Oxford, 1901, p. 42. 



102 GOVERNMENT AND CITIZENSHIP 

motion for his restraint or punisliment. It is true that the 
people who have made these rules may repeal them. As 
restraints upon the people themselves they are but self- 
denying ordinances which the people may revoke, but the 
supreme test of capacity for popular seK-government is the 
possession of that power of self-restraint through which a 
people can subject its own conduct to the control of declared 
principles of action. 

These rules of constitutional limitation differ from ordinary 
statutes in this, that these rules are made impersonally, 
abstractly, dispassionately, impartially, as the people's 
expression of what they believe to be right and necessary for 
the preservation of their idea of liberty and justice. The 
process of amendment is so guarded by the Constitution itself 
as to require lapse of time and opportunity for dehberation 
and consideration and the passing away of disturbing influ- 
ences which may be caused by special exigencies or excite- 
ments before any change can be made. On the contrary, 
ordinary acts of legislation are subject to the considerations 
of expediency for the attainment of the particular objects of 
the moment, to selfish interests, momentary impulses, pas- 
sions, prejudices, temptations. If there be no general rules 
which control particular action, general principles are 
obscured or set aside by the desires and impulses of the 
occasion. Our knowledge of the weakness of human nature 
and countless illustrations from the history of legislation in 
our own country point equally to the conclusion that if 
governmental authority is to be controlled by rules of action, 
it cannot be relied upon to impose those rules upon itself at 
the time of action, but must have them prescribed for it 
beforehand. 

The second class of Hmitations upon official power pro- 
vided in our Constitution prescribe and maintain the distri- 
bution of power to the different departments of government 



ESSENTIALS OF THE CONSTITUTION 103 

and the limitations upon the officers invested with authority 
in each department. This distribution follows the natural 
and logical lines of the distinction between the dififerent kinds 
of power — legislative, executive, and judicial. But the 
precise allotment of power and lines of distinction are not so 
important as it is that there shall be distribution, and that 
each officer shall be limited in accordance with that distri- 
bution, for without such limitations there can be no security 
for liberty. If, whatever great officer of state happens to be 
the most forceful, skillful, and ambitious, is permitted to 
overrun and absorb to himself the powers of all other officers 
and to control their action, there ensues that concentration 
of power which destroys the working of free institutions, 
enables the holder to continue himself in power, and leaves 
no opportunity to the people for a change except through a 
revolution. Numerous instances of this very process are 
furnished by the history of some of the Spanish-American 
republics. It is of little consequence that the officer who 
usurps the power of others may design only to advance the 
public interest and to govern well. The system which per- 
mits an honest and well-meaning man to do this will afford 
equal opportunity for seffish ambition to usurp power in its 
own interest. Unlimited official power concentrated in one 
person is despotism, and it is only by carefully observed and 
jealously maintained limitations upon the power of every 
public officer that the workings of free institutions can be 
continued. 

The rigid limitation of official power is necessary not only 
to prevent the deprivation of substantial rights by acts of 
oppression, but to maintain that equality of political condi- 
tion which is so important for the independence of individual 
character among the people of the country. When an officer 
has authority over us only to enforce certain specific laws at 
particular times and places, and has no authority regarding 



104 GOVERNMENT AND CITIZENSHIP 

anything else, we pay deference to the law which he repre- 
sents, but the personal relation is one of equality. Give to 
that officer, however, unlimited power, or power which we 
do not know to be Hmited, and the relation at once becomes 
that of an inferior to a superior. The inevitable result of 
such a relation long continued is to deprive the people of the 
country of the individual habit of independence. This may 
be observed in many of the countries of Continental Europe, 
where official persons are treated with the kind of deference, 
and exercise the kind of authority, which are appropriate 
only to the relations between superior and inferior. 

So the Massachusetts Constitution of 1780, after limiting 
the powers of each department to its own field, declares that 
this is done " to the end it may be a government of laws and 
not of men." 

The third class of limitations I have mentioned are those 
made necessary by the novel system which I have described 
as superimposing upon a federation of state governments, a 
national government acting directly upon the individual 
citizens of the states. This expedient was wholly unknown 
before the adoption of our Constitution. All the confedera- 
tions which had been attempted before that time were simply 
leagues of states, and whatever central authority there was 
derived its authority from and had its relations with the 
states as separate bodies pohtic. This was so of the old 
confederation. Each citizen owed his allegiance to his own 
state and each state had its obhgations to the confederation. 
Under our constitutional system in every part of the territory 
of every state there are two sovereigns, and every citizen 
owes allegiance to both sovereigns — to his state and to his 
nation. In regard to some matters, which may generally be 
described as local, the state is supreme. In regard to other 
matters, which may generally be described as national, the 
nation is supreme. It is plain that to maintain the line 



ESSENTIALS OF THE CONSTITUTION 105 

between these two sovereignties operating in the same terri- 
tory and upon the same citizens is a matter of no little diffi- 
culty and delicacy. Nothing has involved more constant 
discussion in our political history than questions of conflict 
between these two powers and we fought the great Civil War 
to determine the question whether in case of conflict the 
allegiance to the state or the allegiance to the nation was of 
superior obligation. We should observe that the Civil War 
arose because the Constitution did not draw a clear line 
between the national and state powers regarding slavery. It 
is of very great importance that both of these authorities, 
state and national, shall be preserved together and that the 
limitations which keep each within its proper province shall 
be maintained. If the power of the states were to override 
the power of the nation we should ultimately cease to have 
a nation and become only a body of really separate, although 
confederated, state sovereignties continually forced apart by 
diverse interests and ultimately quarreling with each other 
and separating altogether. On the other hand, if the power 
of the nation were to override that of the states and usurp 
their functions we should have this vast country, with its 
great population, inhabiting widely separated regions, differ- 
ing in chmate, in production, in industrial and social interests 
and ideas, governed in all its local affairs by one all-powerful, 
central government at Washington, imposing upon the home 
life and behavior of each community the opinions and ideas 
of propriety of distant majorities. Not only would this be 
intolerable and alien to the idea of free self-government, but 
it would be beyond the power of a central government to do 
directly. Decentralization would be made necessary by the 
mass of government business to be transacted, and so our 
separate localities would come to be governed by delegated 
authority — by proconsuls authorized from Washington to 
execute the will of the great majority of the whole people. 



106 GOVERNMENT AND CITIZENSHIP 

No one can doubt that this also would lead by its different 
route to the separation of our Union. Preservation of our 
dual system of government, carefully restrained in each of 
its parts by the limitations of the Constitution, has made 
possible our growth in local self-government and national 
power in the past, and, so far as we can see, it is essential to 
the continuance of that government in the future. 

All of these three classes of constitutional Hmitations are 
therefore necessary to the perpetuity of our government. I 
do not wish to be understood as saying that every single limi- 
tation is essential. There are some limitations that might be 
changed and something different substituted. But the sys- 
tem of limitation must be continued if our governmental 
system is to continue — if we are not to lose the fundamental 
principles of government upon which our Union is maintained 
and upon which our race has won the Hberty secured by law 
for which it has stood foremost in the world. 

Lincoln covered this subject in one of his comprehensive 
statements that cannot be quoted too often. He said in the 
first inaugural: 

A majority held in restraint by constitutional checks and limitations 
and always changing easUy with deliberate changes of popular opinion and 
sentiment is the only true sovereign of a free people. Whoever rejects 
it does of necessity fly to anarchy or despotism. 

Rules of limitation, however, are useless unless they are 
enforced. The reason for restraining rules arises from a 
tendency to do the things prohibited. Otherwise no rule 
would be needed. Against all practical rules of limitation — 
all rules Hmiting official conduct, there is a constant pressure 
from one side or the other. Honest differences of opinion as 
to the extent of power, arising from different points of view 
make this inevitable, to say nothing of those weaknesses and 
faults of human nature which lead men to press the exercise 
of power to the utmost under the influence of ambition, of 



ESSENTIALS OF THE CONSTITUTION 107 

impatience with opposition to their designs, of selfish interest 
and the arrogance of oflfice. No mere paper rules will restrain 
these powerful and common forces of human nature. The 
agency by which, under our system of government, obser- 
vance of constitutional limitation is enforced is the judicial 
power. The Constitution provides that " This Constitution, 
and the laws of the United States which shall be made in 
pursuance thereof, and all treaties made, or which shall be 
made, under the authority of the United States, shall be the 
supreme law of the land; and the judges in every state shall 
be bound thereby, anything in the constitution or laws of 
any state to the contrary notwithstanding." Under this 
provision an enactment by Congress not made in pursuance 
of the Constitution, or an enactment of a state contrary to 
the Constitution, is not a law. Such an enactment should 
strictly have no more legal effect than the resolution of any 
private debating society. The Constitution also provides 
that the judicial power of the United States shall extend to 
all cases in law and equity arising under the Constitution and 
laws of the United States. Whenever, therefore, in a case 
before a federal court rights are asserted under or against 
some law which is claimed to violate some limitation of the 
Constitution the court is obliged to say whether the law 
does violate the Constitution or not, because if it does not 
violate the Constitution the court must give effect to it as 
law, while if it does violate the Constitution it is no law at 
all and the court is not at liberty to give effect to it. The 
courts do not render decisions like imperial rescripts declar- 
ing laws valid or invalid. They merely render judgment on 
the rights of the litigants in particular cases, and in arriving 
at their judgment they refuse to give effect to statutes which 
they find clearly not to be made in pursuance of the Consti- 
tution and therefore to be no laws at all. Their judgments 
are technically binding only in the particular case decided. 



108 GOVERNMENT AND CITIZENSHIP 

but the knowledge that the court of last resort has reached 
such a conclusion concerning a statute, and that a similar 
conclusion would undoubtedly be reached in every case of 
an attempt to found rights upon the same statute, leads to a 
general acceptance of the invalidity of the statute. 

There is only one alternative to having the courts decide 
upon the validity of legislative acts, and that is by requiring 
the courts to treat the opinion of the legislature upon the 
vahdity of its statutes, evidenced by their passage, as con- 
clusive. But the effect of this would be that the legislature 
would not be limited at all except by its own will. All the 
provisions designed to maintain a government carried on by 
officers of limited powers, all the distinctions between what 
is permitted to the national government and what is per- 
mitted to the state governments, all the safeguards of the 
Hfe, Hberty and property of the citizen against arbitrary 
power, would cease to bind Congress, and on the same 
theory they would cease also to bind the legislatures of the 
states. Instead of the Constitution being superior to the laws 
the laws would be superior to the Constitution, and the essen- 
tial principles of our government would disappear. More 
than one hundred years ago. Chief Justice Marshall, in the 
great case of Marbury v. Madison,^ set forth the view upon 
which our government has ever since proceeded. He said: 

The powers of the legislature are defined and limited; and that those 
limits may not be mistaken or forgotten, the Constitution is written. To 
what purpyose are powers limited, and to what piirpose is that limitation 
committed to WTiting, if these limits may, at any time, be passed by those 
intended to be restrained ? The distinction between a government with 
limited and unlimited powers is aboHshed, if those limits do not confine 
the persons on whom they are imposed, and if acts prohibited and acts 
allowed are of equal obligation. It is a proposition too plain to be con- 
tested, that the Constitution controls any legislative act repugnant to it; 
or that the legislature may alter the Constitution by an ordinary act. 

1 1 Cranch, pp. 137. 176-177. 



ESSENTIALS OF THE CONSTITUTION 109 

Between these alternatives, there is no middle ground. The Constitu- 
tion is either a superior, paramount law, unchangeable by ordinary means, 
or it is on a level with ordinary legislative acts, and, like other acts, is 
alterable when the legislature shall please to alter it. If the former part 
of the alternative be true, then a legislative act, contrary to the Constitu- 
tion, is not law: if the latter part be true, then written constitutions are 
absurd attempts, on the part of the people, to hmit a power, in its own 
nature illimitable. 

Certainly, all those who have framed written constitutions contemplate 
them as forming the fundamental and paramount law of the nation, and 
consequently, the theory of every such government must be, that an act 
of the legislature, repugnant to the constitution, is void. This theory is 
essentially attached to a written constitution, and is, consequently, to be 
considered, by this court, as one of the fundamental principles of oxu* society. 

And of the same opinion was Montesquieu who gave the 
high authority of the Esprit des lois to the declaration that 

There is no liberty if the power of judging be not separate from the 
legislative and executive powers; were it joined with the legislative the 
life and liberty of the subject would be exposed to arbitrary control.^ 

It is to be observed that the wit of man has not yet devised 
any better way of reaching a just conclusion as to whether a 
statute does or does not conflict with a constitutional limita- 
tion upon legislative power than the submission of the ques- 
tion to an independent and impartial court. The courts are 
not parties to the transactions upon which they pass. They 
are withdrawn by the conditions of their office from partici- 
pation in business and political affairs out of which litiga- 
tions arise. Their action is free from the chief dangers which 
threaten the undue extension of power, because, as Hamilton 
points out in The Federalist, they are the weakest branch 
of government: they neither hold the purse, as does the 
legislature, nor the sword, as does the executive. During 
all our history they have commanded and deserved the 
respect and confidence of the people. General acceptance 

' Esprit des his, by Charles Loub de Secondat Montesquieu, Vol. I, p. 181, 



110 GOVERNMENT AND CITIZENSHIP 

of their conclusions has been the chief agency in preventing 
here the discord and strife which afflict so many lands, and 
in preserving peace and order and respect for law. 

Indeed in the effort to emasculate representative govern- 
ment to which I have already referred, the people of the 
experimenting states have greatly increased their reliance 
upon the courts. Every new constitution with detailed 
orders to the legislature is a forcible assertion that the 
people will not trust legislatures to determine the extent of 
their own powers, but will trust the courts. 

Two of the new proposals in government which have been 
much discussed, directly relate to this system of constitu- 
tional limitations made effective through the judgment of 
the courts. One is the proposal for the recall of judges, and 
the other for the popular review of decisions, sometimes 
spoken of as the recall of decisions. 

Under the first of these proposals, if a specified proportion 
of the voters are dissatisfied with a judge's decision they are 
empowered to require that at the next election, or at a special 
election called for that purpose, the question shall be pre- 
sented to the electors whether the judge shall be permitted to 
continue in office or some other specified person shall be 
substituted in his place. This ordeal differs radically from 
the popular judgment which a judge is called upon to meet 
at the end of his term of office, however short that may be, 
because when his term has expired he is judged upon his 
general course of conduct while he has been in office and 
stands or falls upon that as a whole. Under the recall a 
judge may be brought to the bar of pubhc judgment imme- 
diately upon the rendering of a particular decision which 
excites public interest and he will be subject to punishment 
if that decision is unpopular. Judges will naturally be afraid 
to render unpopular decisions. They will hear and decide 
cases with a stronger incentive to avoid condemnation them- 



ESSENTIALS OF THE CONSTITUTION 111 

selves than to do justice to the htigant or the accused. 
Instead of independent and courageous judges we shall have 
timid and time-serving judges. That highest duty of the 
judicial power to extend the protection of the law to the 
weak, the friendless, the unpopular, will in a great measure 
fail. Indirectly the effect will be to prevent the enforcement 
of the essential limitations upon ojQBcial power because the 
judges will be afraid to declare that there is a violation when 
the violation is to accomplish some popular object. 

The recall of decisions aims directly at the same result. 
Under such an arrangement, if the courts have found a 
particular law to be a violation of one of the fundamental 
rules of limitation prescribed in the Constitution, and the 
public feeling of the time is in favor of disregarding that 
limitation in that case, an election is to be held, and if the 
people in that election vote that the law shall stand, it is to 
stand, although it be a violation of the Constitution; that 
is to say, if at any time a majority of the voters of a state 
(and ultimately the same would be true of the people of the 
United States) choose not to be bound in any particular case 
by the rule of right conduct which they have established for 
themselves, they are not to be bound. This is sometimes 
spoken of as a popular reversal of the decisions of courts. 
That I take to be an incorrect view. The power which would 
be exercised by the people under such an arrangement 
would be, not judicial, but legislative. The action would not 
be a decision that the court was wrong in finding a law uncon- 
stitutional, but it would be making a law valid which was 
invalid before because unconstitutional. In such an election 
the majority of the voters would make a law where no law 
had existed before; and they would make that law in viola- 
tion of the rules of conduct by which the people themselves 
had solemnly declared they ought to be bound. The exercise 
of such a power, if it is to exist, cannot be Hmited to the 



112 GOVERNMENT AND CITIZENSHIP 

particular cases which you or I or any man now living may 
have in mind. It must be general. If it can be exercised 
at all it can and will be exercised by the majority whenever 
they wish to exercise it. If it can be employed to make a 
workmen's compensation act in such terms as to violate the 
Constitution, it can be employed to prohibit the worship of 
an unpopular religious sect, or to take away the property 
of an unpopular rich man without compensation, or to pro- 
hibit freedom of speech and of the press in opposition to pre- 
vailing opinion, or to deprive one accused of crime of a fair 
trial when he has been condemned already by the news- 
papers. In every case the question whether the majority 
shall be bound by those general principles of action which 
the people have prescribed for themselves will be determined 
in that case by the will of the majority, and therefore in no 
case will the majority be bound except by its own will at 
the time. 

The exercise of such a power would strike at the very 
foundation of our system of government. It would be a 
reversion to the system of the ancient republics where the 
state was everything and the individual nothing except as a 
part of the state, and where liberty perished. It would be a 
repudiation of the fundamental principle of Anglo-Saxon 
liberty which we inherit and maintain, for it is the very soul 
of our pohtical institutions that they protect the individual 
against the majority. " AH men," says the Declaration, " are 
endowed by their Creator with certain unaHenable Rights." 
Governments are instituted to secure these rights. The 
rights are not derived from any majority. They are not dis- 
posable by any majority. They are superior to all majorities. 
The weakest minority, the most despised sect, exist by their 
own right. The most friendless and lonely human being on 
American soil holds his right to life and Hberty and the 
pursuit of happiness, and all that goes to make them up, by 



ESSENTIALS OF THE CONSTITUTION 113 

title indefeasible against the world, and it is the glory of Amer- 
ican self-government that by the limitations of the Constitu- 
tion we have protected that right against even ourselves. 

That protection cannot be continued and that right cannot 
be maintained, except by jealously preserving at all times and 
under all circumstances the rule of principle which is eternal 
over the will of majorities which shift and pass away. 

Democratic absolutism is just as repulsive, and history 
has shown it to be just as fatal, to the rights of individual 
manhood as is monarchical absolutism. 

But it is not necessary to violate the rules of action which 
we have established for ourselves in the Constitution in order 
to deal by law with the new conditions of the time, for these 
rules of action are themselves subject to popular control. If 
the rules are so stated that they are thought to prevent the 
doing of something which is not contrary to the principles 
of liberty but demanded by them, the true remedy is to be 
found in reconsidering what the rules ought to be and, if 
need be, in restating them so that they will give more com- 
plete effect to the principles they are designed to enforce. 
If, as I believe, there ought to be in my own state, for 
example, a workman's compensation act to supersede the 
present unsatisfactory system of accident litigation, and if 
the Constitution forbids such a law — which I very much 
doubt — the true remedy is not to cast to the winds all 
systematic self-restraint and to inaugurate a new system of 
doing whatever we please whenever we please, unrestrained 
by declared rules of conduct; but it is to follow the orderly 
and ordinary method of amending the Constitution so that 
the rule protecting the right to property shall not be so 
broadly stated as to prevent legislation which the principle 
underlying the rule demands. 

The difference between the proposed practice of overriding 
the Constitution by a vote and amending the Constitution is 



114 GOVERNMENT AND CITIZENSHIP 

vital. It is the difference between breaking a rule and making 
a rule; between acting without any rule in a particular case 
and determining what ought to be the rule of action appli- 
cable to all cases. 

Our legislatures frequently try to evade constitutional 
provisions, and doubtless popular majorities seeking specific 
objects would vote the same way; but set the same people 
to consider what the fundamental law ought to be, and con- 
front them with the question whether they will abandon in 
general the principles and the practical rules of conduct 
according to principles, upon which our government rests, 
and they will instantly refuse. While their minds are con- 
sciously and avowedly addressed to that subject they will 
stand firm for the general rules that will protect them and 
their children against oppression and usurpation, and they 
will change those rules only if need be to make them enforce 
more perfectly the principles which underlie them. 

Communities, like individuals, will declare for what they 
believe to be just and right; but communities, like indi- 
viduals, can be led away from their principles step by step 
under the temptations of specific desires and supposed 
expediencies until the principles are a dead letter and allegi- 
ance to them is a mere sham. 

And that is the way in which popular governments lose 
their vitality and perish. 

The Roman consuls derived their power from the people 
and were responsible to the people; but Rome went on pre- 
tending that the emperors and their servants were consuls 
long after the praetorians were the only source of power and the 
only power exercised was that of irresponsible despotism. 

A number of countries have copied our Constitution 
coupled with a provision that the constitutional guarantees 
may be suspended in case of necessity. We are all familiar 
with the result. The guarantees of liberty and justice and 



ESSENTIALS OF THE CONSTITUTION 115 

order have been forgotten: the government is dictatorship 
and the popular will is expressed only by revolution. 

Nor, so far as our national system is concerned has there 
yet appeared any reason to suppose that suitable laws to 
meet the new conditions cannot be enacted without either 
overriding or amending the Constitution. The liberty of 
contract and the right of private property which are pro- 
tected by the limitations of the Constitution are held subject 
to the police power of government to pass and enforce laws 
for the protection of the public health, public morals, and 
public safety. The scope and character of the regulations 
required to accomplish these objects vary as the conditions 
of life in the country vary. Many interferences with con- 
tract and with property which would have been unjustifiable 
a century ago are demanded by the conditions which exist 
now and are permissible without violating any constitutional 
limitation. What will promote these objects the legislative 
power decides with large discretion, and the courts have no 
authority to review the exercise of that discretion. It is only 
when laws are passed under color of the pohce power and 
having no real or substantial relation to the purposes for 
which the power exists, that the courts can refuse to give 
them effect. 

By a multitude of judicial decisions in recent years our 
courts have sustained the exercise of this vast and progressive 
power in dealing with the new conditions of life under a 
great variety of circumstances. The principal difficulty in 
sustaining the exercise of the power has been caused ordi- 
narily by the fact that carelessly or ignorantly drawn stat- 
utes either have failed to exhibit the true relation between 
the regulation proposed and the object sought, or have 
gone farther than the attainment of the legitimate object 
justified. A very good illustration of this is to be found in 
the federal employer's liability act which was carelessly 



116 GOVERNMENT AND CITIZENSHIP 

drawn and passed by Congress in 1906 and was declared 
unconstitutional by the Supreme Court, but which was care- 
fully drawn and passed by Congress in 1908 and was declared 
constitutional by the same court. 

Insistence upon hasty and violent methods rather than 
orderly and deliberate methods is really a result of impa- 
tience with the slow methods of true progress in popular 
government. We should probably make little progress were 
there not in every generation some men who, realizing evils, 
are eager for reform, impatient of delay, indignant at oppo- 
sition, and intolerant of the long, slow processes by which 
the great body of the people may consider new proposals in 
all their relations, weigh their advantages and disadvan- 
tages, discuss their merits, and become educated either to 
their acceptance or rejection. Yet that is the method of 
progress in which no step, once taken, needs to be retraced; 
and it is the only way in which a democracy can avoid de- 
stroying its institutions by the impulsive substitution of 
novel and attractive but impracticable expedients. 

The wisest of all the Fathers of the Republic has spoken, 
not for his own day alone but for all generations to come after 
him, in the solemn admonitions of the Farewell Address. 
It was to us that Washington spoke when he said: 

The basis of our political systems is the right of the people to make and 
to alter their constitutions of government; but the constitution which 
at any time exists, till changed by an explicit and authentic act of the 
whole people, is sacredly obligatory upon aU. . . . Towards the preser- 
vation of your government, and the permanency of your present happy 
state, it is requisite, not only that you steadily discountenance irregular 
oppositions to its acknowledged authority but also that you resist with 
care the spirit of innovation upon its principles, however specious the 
pretexts. One method of assault may be to efiFect, in the forms of the 
constitution, alterations which will impair the energy of the system, 
and thus to undermine what cannot be directly overthrown. In all the 
changes to which you may be invited, remember that time and habit are 
at least as necessary to fix the true character of governments as of other 
human institutions; that experience is the surest standard by which to 



ESSENTIALS OF THE CONSTITUTION 117 

test the real tendency of the existing constitution of a country; that 
facility in changes, upon the credit of mere hyp>othesis and opinion, 
exposes to perpetual changes, from the endless variety of hypothesis 
and opinion. 

While, in the nature of things, each generation must 
assume the task of adapting the working of its government 
to new conditions of life as they arise, it would be the folly 
of ignorant conceit for any generation to assume that it can 
lightly and easily improve upon the work of the founders in 
those matters which are, by their nature, of universal 
application to the permanent relations of men in civil society. 

Religion, the philosophy of morals, the teaching of history, 
the experience of every human life, point to the same con- 
clusion — that in the practical conduct of life the most 
diflBcult and the most necessary virtue is self-restraint. It is 
the first lesson of childhood; it is the quality for which great 
monarchs are most highly praised; the man who has it not 
is feared and shunned; it is needed most where power is 
greatest; it is needed more by men acting in a mass than by 
individuals, because men in the mass are more irresponsible 
and difficult of control than individuals. The makers of our 
Constitution, wise and earnest students of history and of life, 
discerned the great truth that self-restraint is the supreme 
necessity and the supreme virtue of a democracy. The 
people of the United States have exercised that virtue 
by the establishment of rules of right action in what we call 
the limitations of the Constitution, and until this day they 
have rigidly observed those rules. The general judgment of 
students of government is that the success and permanency 
of the American system of government are due to the 
establishment and observance of such general rules of con- 
duct. Let us change and adapt our laws as the shifting 
conditions of the times require, but let us never abandon 
or weaken this fundamental and essential characteristic of 
our ordered liberty. 



NEW YORK STATE 

CONSTITUTIONAL CONVENTIONS 

OF 1894 AND 1915 



The first constitution of the state of New York was adopted on 
April 20, 1777. Since tliat date, the state has had three separate and dis- 
tinct constitutions, and six constitutional conventions: 1801, 1821, 1846, 
1867, 1894, and 1915. The second constitution, framed by the constitu- 
tional convention, was adopted in 1821. The third constitution, adopted 
in 1846, and ratified by the people, provided for a constitutional convention 
to be held every twenty years thereafter, and required the legislature to 
submit the question of holding a convention to a vote of the people. The 
convention of 1867 adopted a constitution, which was defeated at the poUs. 
The Honorable David B. HiU, then governor, vetoed the bill providing for 
a constitutional convention in 1887. In 1894, the fifth constitutional con- 
vention drafted various amendments to the constitution, and the constitu- 
tion as thus amended was submitted to and approved by the people. The 
sixth constitutional convention, held in 1915, prop>osed many important 
and far-reaching amendments, and the constitution with these amend- 
ments, was submitted to the people on November 2, and was defeated. 

In legislative bodies biUs introduced often fail of enactment because 
they are at the time of their introduction in advance of pubUc sentiment; 
but eventually they are placed upon the statute books. In constitutional 
conventions it likewise happens that proposals involving fundamental 
changes are approved by the convention, but are defeated at the poUs. 
But, as is the case in legislative assembUes, they again make their appear- 
ance and are finall y embodied in the constitution. 

Honorable Joseph H. Choate was president of the convention of 1894 
and ;Mr. Root was chairman of the Judiciary Committee and the floor 
leader of the majority. 

Mr. Root was elected president of the New York constitutional con- 
vention of 1915. As presiding oflBcer, he frequently took part in the 
general debates of the convention, regarding whose work he said in an 
address contained in the present volume, " We are performing the highest 
and most sacred duty that ci^-ilization demands from man." 

The spirit m which IVIr. Root approached the performance of his duties 
is shown by the following prayer which he made on May 5, 1915, in the 
absence of the chaplain: 

Almighty God, we pray to Thee to guide our dehberations this day. 
Make us humble, sincere, devoted to the pubUc service. Make us 
wise, considerate of the feelings and the opinions and the rights of 
others. Make us effective and useful for the advancement of Thy 
cause of peace and justice and hberty in the world. For Christ's 
sake. Amen. 



THE CONVENTION OF 1894 

As the floor leader of the convention of 1894, Mr. Root made many speeches in 
that body, a large portion of which had to do with the procedure of the convention, 
while others were explanatory in their character. From the remainder, five 
speeches are selected, dealing with important questions and phases of government. 

TRIAL BY JURY 

ADDRESS OF JULY 17, 1894 

The Convention having under consideration the following report from the 
Committee on Judiciary: 

The Committee on Judiciary, to which has been referred the proposed con- 
stitutional amendments, relating to the subject of trial by jury, respectfully 
reports, four members dissenting, that it has fully considered the proposed 
amendments, and that in the judgment of the committee no amendments 
should be made to the provisions of the existing constitution relating to that 
subject: 
Mr. Root said: 

I WISH to make a very few observations upon the merits of 
this report. 

I apprehend that it is not the function of this convention 
to evolve a constitution out of theory or from first principles, 
irrespective of the existing condition of things. That is not 
the American or the Anglo-Saxon method of legislation. It 
is the French method, which has given to them within the 
last century many constitutions, none of which has been 
permanent. Our method is to proceed cautiously, slowly, 
holding on to that which is good, and changing only when we 
are certain that a change will be an improvement. 

Now, sir, the fundamental idea of this report is that while 
there were many things which led the people of this state to 
order the convening of their delegates for the purpose of 
revising and amending the constitution, a discontent with 
the system of trial by jury was not one of those things. We 



122 GOVERNMENT AND CITIZENSHIP 

did not believe — I do not now believe, notwithstanding the 
very able and forceful addresses which have been made 
tonight, — that the people of the state of New York are 
dissatisfied with their time-honored institution of trial by 
jury. I am not dissatisfied with it, sir. I believe that it is 
one of the most important, most vital, most sacred of the 
institutions which maintain our free and popular govern- 
ment. I beheve that it serves to bring the people — not 
lawyers and judges, but the plain people — who vote, and 
who underlie the whole structure of our government, into 
immediate participation in the administration of law. I 
believe that it mitigates the severe logic of the law, and makes 
its administration tolerable. I believe that it reaches cor- 
rect results in fact and in reason, though not always by logic; 
and I believe, sir, that the very essential feature of this sys- 
tem is the requirement of unanimity. I think that the 
amendment which aims at permitting less than the entire 
body of the jury to render a verdict, is aimed at the very 
heart of the jury system, and is nothing short of revolution. 
Now, sir, believing that, we could do nothing else than report 
against this amendment, even though we were in doubt, even 
though it might seem to you and to me, even to a majority of 
this convention, that if we were to frame a constitution anew 
upon theoretic principles, nevertheless we would require 
overwhelming evidence that our new idea was the best, 
before we should venture without any evidence of great popu- 
lar discontent with what exists, without any evidence of a 
great popular demand for a radical change in the established 
institution, to set out upon a new and untried experiment, 
relating to the most vital matter in the administration of the 
law. 

I say most vital, because this is where the people are con- 
cerned in the administration of the law. It is the muniment 
of their title to control of that administration. It is the 



TRIAL BY JURY 123 

means by which they protect themselves against power, 
against wealth, and against the judge on the bench. I am 
not surprised that we should have expressions from judges 
which tend in derogation of the system of trial by jury, for 
the system of trial by jury was designed and has served 
always as a protection against judges; and the time comes 
often and again when the people need that protection, when 
individual liberty needs that protection; and I will never 
consent, if I vote alone, against overwhelming majorities, to 
take away one jot or tittle of the strength, the stability and 
the perpetuity of that safeguard. 

I do not believe, sir, that the people of this state will ever 
consent to it. I hope they never will. 

Mr. President, I have said all that I have to say, with one 
exception: We have had read to us tonight a number of 
expressions of opinion from text-writers, from jurists, from 
learned judges, in England, in Illinois, in Michigan, in Iowa, 
and in New York; but in England, in Illinois, in Michigan, 
in Iowa, in New York, there still remains the system of trial 
by jury, with its essential characteristic of a unanimous 
verdict. Theory is against it, Mr. President, but the plain 
practical common sense of the Anglo-Saxon race has wrought 
out and holds to, and I believe means to hold to this their 
peculiar method of conciliating disputes and of ending litiga- 
tion. The plain sense of the people, through hundreds of 
years in practical experiment, sets itself still against the 
theories of jurists. The plain sense of the people will have to 
pass upon this revised and amended constitution. Not 
theorists, not jurists, not text- writers. To the people we must 
appeal, and let us apply their good common sense to the work 
which we do. I hope, Mr. President, that this convention 
will not attack the system of trial by jury. 



THE JUDICIARY 

ADDRESS OF AUGUST 20. 1894 

It is exceedingly difficult and yet necessary to draw the line in the Union and in 
the states between original and appellate jurisdiction of courts of justice. The 
Committee on the Judiciary of the Constitutional Convention of New York of 
1894, of which Mr. Root was the chairman, dealt with this question. After much 
thought and reflection, the Committee presented a report, drafted by Mr. Root, 
drawing this distinction. 

In presenting the Judiciary Article to the convention, Mr. Root made the 
address which follows. The whole article, consisting of twenty-three sections, was 
adopted by the convention practically in the form in which it was presented by 
Mr. Root; it was submitted to the people of the state with the remainder of the 
constitution at the November election of 1894, and was adopted. With certain 
amendments which have since been adopted, it is now a part of the organic law of 
the state. 

IF the members of the convention will bear with me for a 
few minutes, I would like to explain the general scheme of 
reform in the judicial system of the state which is proposed 
by the judiciary committee. The two main evils which mani- 
festly require treatment by this convention, so far as the 
judicial system is concerned, are the great delay in bringing 
causes to trial, in the first instance, and the great delay in 
securing the final disposition of causes because of the over- 
crowding of the calendar of the Court of Appeals. The pro- 
posed article is designed in the best way which the committee 
could devise to meet these two evils. So far as the first is 
concerned, that is to say, the overcrowding of calendars of 
courts of first instance, the cure is simple. It is, to bring 
about as great an economy of judicial force in the trial courts 
as possible, and to make a sufficient number of additions to 
those courts to enable a suitor to have his case tried at the 
earliest possible day. The overcrowding of calendars of trial 
courts exists chiefly in the great cities. It is worst in the city 

125 



126 GOVERNMENT AND CITIZENSHIP 

of New York. Next to that comes the city of Brooklyn, and 
so on through the other cities of the state, ahnost in propor- 
tion to their size. The committee has proposed in this 
article to dispose of this evil, in the first place, by consolidat- 
ing with the Supreme Court the Superior City Courts which 
exist in the cities of New York, Brooklyn and Buffalo. At 
present, in the city of New York, there is the Supreme Court, 
with its jury terms, which we call circuits, its special terms 
for the trial of equity causes, its chambers for the hearing of 
motions, and its general term for the hearing of appeals. 
There is also the Court of Common Pleas, with a like array of 
jury terms and special terms and chambers and general terms. 
Then there is the Superior Court, with a similar array of 
different parts, and, in the midst of these, with three general 
terms and a great number of special terms, and three judges 
sitting in chambers, and a great number of jury terms, 
judges assigned for particular terms run out of business and 
have nothing to do. A great deal of time is occupied in this 
machinery of judicial procedure, multiplied over and over 
again in the different courts. We think there will be a very 
decided economy of judicial force arising from the consoli- 
dation of these courts. The other evil is the overcrowding of 
the calendar of the Court of Appeals, and we have treated 
that with a view to the functions of a court of last resort and 
of intermediate courts of appeal. It is apparent that when 
the state has furnished to its citizens one trial of their rights 
and one impartial review of the rulings and results of that 
trial by a competent tribunal, it has fulfilled its duty. That 
is all that is done in the other states of the Union. It is all 
that is done under the system of the Federal judiciary. One 
trial by a competent court and one review by a competent 
and impartial tribunal is all that either public duty or private 
interest in litigation requires, so far as the litigant himself is 
concerned. There is no reason for having a court of appeals 



THE JUDICIARY 127 

superior to the courts which in the first instance review 
judgments of the trial courts in this state, except for the 
consideration which I will now state. It is, that the amount 
of judicial business in this state is so great that it is impos- 
sible for any one court to review all the decisions of courts of 
first instance. It would be impossible for any two courts to 
review them all, or for any three courts, probably. So in 
order that litigants may have the hasty rulings of the trial 
courts reviewed, it is necessary that we should have three or 
four appellate courts to perform that function. But, three 
or four courts never can settle the law, and it is of the highest 
importance to the people of the state, and all the people of 
the state, not merely that the litigant in a particular lawsuit 
shall have his right, but that the law shall be settled; that 
it shall be declared so clearly that all the people may know 
what is the law by which they are to regulate their contracts 
and their conduct and keep out of litigation, if may be, so 
that there may be a symmetrical and harmonious system 
for the government of the people of the state as well as for 
according specific rights to the parties in particular litiga- 
tions. Now, three or four courts can never accomplish that. 
They are certain to vary and differ and conflict in their deci- 
sions. It is necessary, in order that the law shall be settled, 
shall be clear, shall be known, and shall be a guide for the 
conduct of all the people of the state, that some one supreme 
authority shall supervise the decisions of these various courts 
of original appeal, and finally declare what is the law. That 
is the sole reason for the existence of the Court of Appeals. 
But for that we might abolish the Court of Appeals, and 
constitute four supreme appellate tribunals in different parts 
of the state, and allow them to render to litigants their 
rights in their particular litigations. When the Judiciary 
Article of 1867 was adopted it was supposed that the Court 
of Appeals, as then constituted, would be able to review all 



128 GOVERNMENT AND CITIZENSHIP 

of the decisions of the general terms of the Supreme Court 
then constituted. That was so for a time, but of late years 
it is no longer so. Various circumstances connected with the 
organization and action of the general terms have brought 
about a state of affairs in which so large a body of appeals 
passes through those courts on to the Court of Appeals that 
that court no longer can keep up with its work and perform 
the function of settling and declaring the law of the state; 
and with this view we addressed ourselves to ascertain 
whether it was not possible so to constitute the intermediate 
appellate tribunal which we have heretofore called the 
general term, and so regulate the appeals from its judgments 
to the Court of Appeals that it would perform the function 
which it was originally designed to perform. We found 
among the reasons why the general terms are not able to 
stop the great body of appeals to the Court of Appeals, 
these: In the first place, the general term is so small, con- 
sisting of only three members, that there is not that consul- 
tation, that deliberation, that correction of one mind by 
another which is necessary for the satisfactory conclusions of 
an appellate tribunal. In the next place, as the justices of 
the general term are engaged in the ordinary judicial work, 
trying and deciding cases, and, in many instances, doing 
their full share of trial work, in numerous cases Utigants 
coming before that coiui; find that one of the judges is 
obhged to retire from the bench during an appeal from his 
own decision. And a double evU has resulted. First, that 
there are but two judges to pass upon the appeal — a num- 
ber manifestly insufficient to secure full consultation and 
correction of one judgment by another. And another evil 
is that Htigants are obhged to see the very judge from whom 
they are appealing going into the consultation room with the 
other two judges who are his associates, and upon whose 
decisions he is about, in the due course of the call of the 



THE JUDICIARY 129 

calendar, to sit in review, for consultation on all the general 
business of the court. 

And both of these have tended to decrease respect for the 
judgments of the general terms. Moreover, the fact that 
these judges in the general terms are called upon to leave 
that work to go to their circuits and to their special terms 
has led to the shortening of their hearings and to cutting 
down the time allowed counsel, so that counsel have been in 
the habit, in many places, of uniformly leaving the court 
feeling dissatisfied and deprived of an opportunity for the 
full presentation of their cases. And the judges, called away 
by these other duties, have been in the habit frequently of 
separating with their work unfinished; and we all know that 
it has been largely a practice for the judges of the general 
terms, after these brief and hurried hearings, after counsel 
have gone out of court dissatisfied because they have not 
been fully heard, to separate and, without much of any con- 
sultation, have one judge write an opinion and send it around 
to be concurred in, or not, as the case may be; and the ten- 
dency of all the vis inertice which exists among judges, as it 
does among others, has led toward concurrence rather than 
courting a troublesome struggle by disagreement with an 
opinion already written. 

Then, again, the legislature has been constantly enlarging 
the scope of appeal from the general term to the Court of 
Appeals. It has opened doorway after doorway, through 
which constantly additional kinds of questions can be taken 
up to the Court of Appeals, so that the finality of the judg- 
ment of the general term has been constantly decreased, and, 
therefore, respect for their decisions has been decreased, 
and their own sense of responsibility has been decreased. 
Now, what we propose to do is this; we propose to divide the 
state into four departments, and in each department have a 
new appellate tribunal, which will take the place of the five 



130 GOVERNMENT AND CITIZENSHIP 

general terms of the Supreme Court, and the four general 
terms of the Superior City Courts, nine in all, to which all 
appeals, from whatever tribunal, shall go in the first instance; 
and we propose to make that a more effective and satisfac- 
tory tribunal than the existing general terms in these ways: 
In the first place, by giving a greater finality to its judgments 
than the general terms now have; finality in a much wider 
range of questions, by imposing limitations upon the juris- 
diction of the Court of Appeals, and on the right of appeal to 
that court. In the next place, by giving stability, perma- 
nence and independence to that court, through making its 
members hold for a fixed term; and for that purpose we 
provide, that they shall be selected by the governor from all 
the justices elected to the Supreme Court, for terms of five 
years; the presiding judge for a term which shall be coexten- 
sive with the remainder of his term of office in the Supreme 
Court. We give them also the right, the power, to govern 
their own sessions and to appoint their own clerk, and fix the 
place where his office shall be held. So that instead of being 
a court without a clerk, without a home, without power of 
self-control, shifting, variable always, its members coming 
in and out from the trial courts, reviewing each other's 
decisions, without sufficient time for the performance of their 
duties, it will be a real court, with power, with permanence, 
with stability, and worthy of the name of an appellate 
tribunal. We propose, further, to give an opportunity for 
full discussion, by making it a court of five members; and 
five members will have to consult. One of the presiding 
justices of the general term said to me some time ago, " We 
cannot do any more work with five judges than we can with 
three." " Yes," I said, " but if you have five judges, will you 
not consult .? " " Yes," he said, " we will." And, therefore, 
I say, though five judges may not do any more work than 
three, they will do better work and better respected work. 



THE JUDICIARY 131 

In the next place, we propose to give them the opportunity 
for deliberation, consultation and full hearing, by relieving 
them of the obligation of doing all other judicial work. We 
make it so that they cannot be called upon to sit in circuit or 
in special terms, or to try or determine cases. This, then, 
will be a real court, constituted by the conjoint action of the 
elective principle, through the power exercised by the people 
in electing justices, and the appointive principle, through 
the power exercised by the governor, of selection from the 
justices of the Supreme Court, as respectable, as able, as 
efficient, as any court of last resort in any state of the Union. 
We believe that it will be more satisfactory and effective, 
that its judgments will be more respected, that they will be 
less frequently reversed, and, therefore, less frequently 
appealed from than the existing general terms. Correla- 
tive to the formation of this new court, which we call the 
Appellate Division of the Supreme Court, is the limitation 
upon appeals to the Court of Appeals. In framing this we 
have endeavored to follow a clear line of logical distinction 
between the Court of Appeals and the courts of first review, 
a Kne of distinction marked out by the proper function of a 
court of second appeal in settling and declaring the law; and 
we propose to limit the Court of Appeals in two ways; first, 
by limiting them to the review of questions of law, and, 
second, by limiting appeals to them to final judgments or 
orders. There is a general understanding now that the 
proper function of a Court of Appeals is to pass only on ques- 
tions of law, but there is a great class of cases which finds its 
way into the Court of Appeals where virtually there is a 
review of the question of fact for a second time, and we close 
the door to that class, by declaring the principle that juris- 
diction shall be limited to the review of questions of law, and 
by providing that no unanimous decision of an appellate 
division that there is evidence to sustain or support a verdict 



132 GOVERNMENT AND CITIZENSHIP 

not directed by the court, or a finding of fact, shall be 
reviewed by the Court of Appeals. So that when a man has 
tried his case and he has got a jury or a court to decide that 
a fact is proved, and five judges of the Appellate Division of 
the Supreme Court have unanimously held that the fact was 
proved, there is to be an end of controversy upon that fact. 
We beKeve that these two limitations, one limiting the court 
to the decision of questions of law, made effective by the 
supplementary provision that I have mentioned; the other 
limiting the review to final judgments, or orders, together with 
the increased respect and efficiency of the appellate division, 
will so greatly decrease the number of appeals to the Court 
of Appeals that it will for many years, will until the time 
comes for another constitution to be made, be able to deal 
with all the questions presented to it, and to keep up with its 
calendar. We have also, for greater certainty, and out of 
abundant caution, proposed the addition of two members to 
the bench of the Court of Appeals; and we think, or many 
of the committee think, that that will to some degree increase 
the working power of the court. 

In reaching the conclusion that the course which I have 
outlined was the proper course to remedy the evils I have 
mentioned, the committee has had in contemplation several 
other alternatives, some of which have been proposed in 
amendments laid before it. And those were, first, that we 
might limit the jurisdiction of the Court of Appeals by fixing 
a moneyed amount, and preventing appeals to that court in 
any case which involves less than the amount fixed, follow- 
ing in that respect the Federal system which allows no appeal 
to the Supreme Court of the United States in cases involving 
less than five thousand dollars. But we do not believe that is 
a wise provision for the courts of this state. We think that 
as important questions of law arise in small cases as in great 
ones; and we beHeve, moreover, that the Court of Appeals 



THE JUDICIARY 133 

of this state, the court of last resort, which is to declare 
the law for the guidance of all the people, ought to be all the 
people's court. We believe that it should be the court of 
the poor man, so that he may feel that he may go there if he 
wants to, with his question of law, as well as the court of his 
wealthier fellow-citizen. We believe that it is only when 
based upon such a foundation, that any public institution 
can be permanent in a free constitutional government. 
Therefore, instead of putting in a moneyed limit upon appeals 
to the Court of Appeals, we have provided that the limit now 
existing should be taken off, and that no such limit shall ever 
be imposed. Another alternative was, that we might increase 
the Court of Appeals so largely that it could sit in two divi- 
sions. But we might as well abolish the court and rely 
solely upon these four separate appellate divisions as to 
divide the court and have it open to the same objections 
which have led us to put a court above them. Another 
alternative was that we might do as the judiciary commission 
of 1890 proposed, undertake to enumerate classes of cases 
upon which parties might go to the Court of Appeals, leaving 
other classes of cases upon which they should be stopped at 
the tribunal of first resort. But that is uncertain, indefinite, 
difficult of application. It is not within human power to 
avoid mistakes in enumeration and definition of such classes. 
It may be well to attempt it when, as in the Federal Circuit 
Court of Appeals act, there is a statute which may be revised 
every year by Congress; but to undertake to place in a con- 
stitution provisions of this kind, which are certain to require 
amendment, is an experiment that ought to be avoided if 
possible. There is a substantial objection to that also that it 
involves an element of imfaimess to the citizens who are 
most interested in the class of cases that are not allowed to 
go to the Court of Appeals; and this other objection, that 
the same questions of law arise in different kinds of cases; the 



134 GOVERNMENT AND CITIZENSHIP 

same kinds of questions of various descriptions will arise in 
civil cases and in criminal cases, in common-law cases and 
in equity cases, in cases sounding in tort and cases sounditig 
in contract; and if you imdertake to limit the jurisdiction of 
the Court of Appeals by enumeratiug classes that can go and 
classes that cannot go there, you will have one court deciding 
as a last resort upon a given question arising in one kind of a 
case, and another deciding as a court of last resort, upon the 
same question arising in another kind of a case. 

So, we come down to the plan we have adopted, which 
draws the line of limitation clearly on the logical division 
around those questions for which, and for which alone, the 
Court of Appeals was created, and leaves those questions to 
that court, and leaves all other questions to the new, strong, 
competent court which we propose to create for that purpose, 
and which we beheve will give to every Htigant all the 
protection to which he is entitled. 

Mr. Chairman, there is another series of revisions in this 
report relating to Circuit Courts, Courts of Oyer and Ter- 
miner, and Courts of Sessions. We have provided for 
the aboHtion of the Courts of Oyer and Termiuer, and of the 
Circuit Courts and conferred their jurisdiction upon the 
Supreme Court. We have done the same thing as to Courts 
of Sessions and confer their jurisdiction upon the County 
Court. We think, gentlemen, that this is not merely simpli- 
fying the statutes and doing away with something that is 
useless. We think that it is a distinct advantage in a popular 
government that the people shall understand the administra- 
tion of the law, and that the fewer terms and forms you have 
in it, which are like the Egyptian mysteries, and which 
people do not know anything about, the better it is for the 
administration of the law; and these changes make in that 
direction. 



THE JUDICIARY 135 

We have done one other thing, to which I beg to call your 
attention; that is this: There has been in this state a con- 
stant process of enlargement of the jurisdiction of local and 
inferior tribunals. That is how we found ourselves confront- 
ing the situation with four Superior City Courts, which had 
been gradually built up, one of them during two hundred 
years, the others during much shorter periods, by the con- 
stant addition of jurisdiction, until each one had equal 
jurisdiction with the Supreme Court within the locality in 
which it was situated. That is not the way to enlarge the 
Supreme Court. We are proposing to take the judges of 
these courts into the Supreme Court, but it is not the scien- 
tific or the practical, or the proper way to enlarge the 
Supreme Court of the state. The true way is, if the Supreme 
Court is not large enough to perform its functions, and the 
people are satisfied of that, to make it large enough; not to 
build up another court which will be a rival to it, creating 
different jurisdictions, giving people an opportunity to select 
their jurisdiction, which, as somebody has said, if it is a good 
thing for the plaintiff, is always a wrong to the defendant. 
So we prohibit the legislature from ever enlarging the juris- 
diction of local and inferior courts, so as to exceed for courts 
now existing, the jurisdiction they now have, and for any 
court hereafter created, the jurisdiction of the County 
Courts. We thus keep down to the level of local tribunals 
adapted to the performance of specific functions, all courts 
except the one Supreme Court; and we do that not only for 
symmetry, not only to avoid the inconveniences to which I 
have referred of the building up of these rivals to the Supreme 
Court, but we do it because it gives effect to a principle, and 
this is the principle. The proper trial of small causes is just 
as important as the proper trial of large causes. Small causes 
are just as important to those who have them as large causes 



136 GOVERNMENT AND CITIZENSHIP 

are to wealtliier men. The great body of the people of the 
state have only small causes. When a court is organized for 
the trial of small causes it ought to attend to its business and 
try to do it just as well as any other court tries a million- 
dollar cause. But, if you enlarge the jurisdiction, and give 
it million-dollar causes to try, it will never attend to the 
little causes, and you spoil your court for the trial of small 
causes, and merely add another court to those which try 
large ones. We propose by this inhibition upon the legisla- 
ture, to keep a system of courts in this state which will attend 
to the duty of properly trying the small causes, in which the 
great body of the people are more interested than they are in 
the large ones. 



SECTARIAN EDUCATION 

ADDRESS OF SEPTEMBER 1, 1894 

The Convention in Committee of the Whole, Mr. Charles H. Truax in the chair, 
having under consideration a report relative to the use of public moneys for sec- 
tarian education, Mr. Root said: 

I CAME to this convention, Mr. Chairman, in common 
with many of my fellow-delegates, expecting to vote to 
prohibit all state aid to any sectarian institution, whether 
educational or charitable. It is with regret that I have found 
an impression gaining ground in the convention that the 
attempt to prohibit such aid to sectarian charitable institu- 
tions might better be abandoned, and that a proposition made 
by the advocates of such aid might better be accepted, to the 
effect that there should be merely supervision of aid to chari- 
table institutions, and not absolute prohibition. I now find, 
sir, that the very gentlemen who have been seeking to secure 
the acquiescence of this convention in leaving charitable 
institutions free from a prohibition, are insisting upon attach- 
ing to the proposition against state aid to sectarian institu- 
tions a proviso, which, in my judgment, if adopted, will send 
us out of this convention, not merely having failed to pro- 
hibit state aid to sectarian education, but having absolutely 
put into the constitution an authorization of such aid. 
There can be no mistake, Mr. Chairman, about the effect of 
the proviso offered by Mr. Lauterbach, from New York; no 
mistake as to effect of the proviso offered by Mr. Marshall, 
from Onondaga. They both mean, and both accomplish, so 
far as the subject I am now discussing is concerned, the 
same thing. After the clear and emphatic declaration 
contained in section four of the proposed article, that the 
money of the state shall not be used in aid or maintenance of 
any school or institution of learning wholly or in part under 

137 



138 GOVERNMENT AND CITIZENSHIP 

the control or direction of any religious denomination, or in 
wliicli any denominational tenet is taught, it is now proposed 
to say that this section shall not prohibit the appropriation 
of money for secular instruction, to the inmates of any orphan 
asylum or of any institution to which children may be com- 
mitted by judicial process, if such education is incidental 
only; and that is, by the most friendly rules of construction, 
equivalent to putting into this proposition these words: 
" We hereby authorize the use of public money for the main- 
tenance of charitable institutions under sectarian control and 
for instruction in schools connected therewith, under sec- 
tarian and denominational control." That, sir, is the act we 
are now invited to substitute for the contemplated prohibi- 
tion of all state aid to sectarian charities. 

I, for one, sir, will never vote for an article which contains 
such a constitutional authorization of state aid to sectarian 
institutions, or for any constitution which contains such an 
article; and I believe, sir, that the great body of the people 
of this state will refuse to give their sanction to any such 
provision. It is unnecessary, sir, to accomplish the purposes 
of the gentlemen who offer it; for there is not a man in this 
convention who has suggested or will suggest that the sec- 
tion, as it now stands, in the slightest degree interferes with 
the use of the state money for the maintenance of any orphan 
asylum, or any house of refuge, or any charitable institution; 
or in the slightest degree interferes with the use of the money 
of the state for the support or maintenance of any inmate of 
any charitable institution, even though that institution may 
be under sectarian control, and even though instruction 
may be given in it. The proviso proposed can do nothing 
to accomplish any benefit for the institutions in which these 
gentlemen are interested, but it throws open the doors for the 
accomplishment of what we all of us here have agreed to 
avoid, the giving of state aid to sectarian instruction. 



SECTARIAN EDUCATION 139 

The gentleman from Jefferson calls it a small thing. I beg 
leave to say, sir, that it is the greatest question and most 
important principle which has come before this convention, 
or will come before it until its final adjournment. Your 
fathers, Mr. Chairman, came to this country from that 
heroic little land in which Spanish soldiers under the iron 
hand of Philip the Second and the Duke of Alva strove to 
impress the power of the State of Spain upon the consciences 
of William the Silent and John of Barneveldt. Mine left 
their English homes in the reign of Charles the First, to 
escape that controlling force of Church and State united, 
which forbade them liberty of conscience. They came to 
a barbarous and inhospitable shore; they fought and con- 
quered the savage; they felled the forests; they cleared 
the land; they established a state; they secured their inde- 
pendence of foreign control. They set up a reign of law 
and order, of peace and prosperity; and then they opened 
their hands of welcome to the fathers of the gentlemen who 
propose this amendment; they opened their hands to the 
fathers of the gentleman from New York, to the fathers of 
the gentleman from Onondaga, to the fathers of the gentle- 
men upon the other side of the chamber, who are so anxious 
to have this proviso inserted; and they welcomed them, not 
to savage and inhospitable shores, not to wars with savage 
foes, not to privation and hardship, but to a peaceful and a 
happy land, where home and comfort met them at the thres- 
hold, and they gave to them the freest exercise of conscience; 
they welcomed their rehgions with them, forgetful of all the 
tyranny they themselves had endured; they welcomed 
Hebrew and Catholic alike; they imposed no hostile, or 
professional, or business, or social bar against the full exer- 
cise of religion and the full privilege of citizenship, upon 
religious ground; but, Mr. Chairman, there is one thing, and 
one thing only, which this people, generous, broadminded. 



140 GOVERNMENT AND CITIZENSHIP 

and liberal, said, have always said, and say today, that never 
in this state of ours shall be repeated that union of Church 
and State, which drove your fathers and mine from their 
homes in the old world. And that, sir, is the principle which 
we seek to embody in this constitution of ours by the dec- 
laration reported by the Committee on Education. It is the 
greatest principle which this convention has opportunity to 
declare. And, Mr. Chairman, it should be, it must be, it 
shall be, cut down, modified, affected by no proviso, by no 
limitation, to secure or protect any private interest. There- 
fore, I beheve that every true American, of whatever religion, 
will be for this section as it stands now. It is not a question 
of reKgion, or of creed, or of party; it is a question of declar- 
ing and maintaining the great American principle of eternal 
separation between Church and State. 



THE POLITICAL USE OF MONEY 

ADDRESS OF SEPTEMBER 3, 1894 

It is recognized in democracies, where public officers are elected and questions of 
government are passed upon by the people, that political campaigns become in a 
large measure educational campaigns, and that for this purpose considerable sums 
of money can legitimately and wisely be expended. At the same time, there is a 
tendency on the part of imscrupulous politicians to make an improper use of 
money. The difficulty is to draw the line of demarkation between the legitimate and 
the corrupt use of money in political campaigns, and by apt laws to proscribe the 
illegitimate use of money and by criminal proceedings to punish both violators and 
violations of the law. 

In the constitutional convention of 1894, the following amendments were pro- 
posed to article 2 of the constitution: 

Section 6. The legislature shall, by general laws, declare the uses which may 
be lawfully made of money or other valuable things by, or on behalf of, any 
person, to promote his nomination as a candidate for public office, and by or on 
behalf of a candidate to promote his election. 

The use or promise of money or other valuable thing to promote the nomi- 
nation for, or election to, public office of any person otherwise than is expressly 
authorized by law, is prohibited and the person by whom or for whose benefit, 
with his consent, connivance or procurement the same is so used or promised, 
if elected, shall forfeit his office. 

Section 7. No corporation shall directly or indirectly use any of its money 
or property for, or in aid of, any political party or organization, or for, or in aid 
of, any candidate for political office or for nomination for such office, or in any 
manner use any of its money or property for any political purpose whatever, or 
for the reimbiursement or indemnification of any person for moneys or property 
so used. 

Every domestic corporation which violates this section shall forfeit its 
charter, and every foreign corporation which violates this section shall forfeit 
the right to do business in this state. 
Both sections, as above, were adopted in the Committee of the Whole, but neither 
section was incorporated in the final draft of the constitution. 

It is interesting to note that New York seems to have been the first state to 
enact laws against corrupt practices at elections. In 1890 the legislature passed a 
law requiring candidates to file an itemized statement of expenditures on penalty of 
imprisonment and loss of the office. In 1909, the legislature passed a law sub- 
stantially in the words of the proposed amendment of 1894, prohibiting corpora- 
tions, except political associations, from contributing to campaign funds or for any 
political purposes whatsoever. 

While the two amendments above quoted were under consideration in the 
Committee of the Whole, on September 3, 1894, Mr. Root made the following 
addresses: 

141 



142 GOVERNMENT AND CITIZENSHIP 

THE object of this provision, Mr. Chairman, is to lay 
down a general principle, to which the laws of the state 
shall conform, which is in accordance with what I beheve to 
be the most enlightened sentiment of the time, and to fix the 
expressions of that sentiment in the constitution; to requke 
the legislatm-e in its laws to conform to it, and require the 
legislature to say what money may be used to procure the 
election of a candidate. Until that is done, there is abso- 
lutely no limit to corruption, no limit to the purchase of 
votes, no limit to the improper influence of voters, or of par- 
ties, or of party men. And you perceive that putting the two 
paragraphs in section 6 together, there is an entirely different 
state of affairs produced from that which now exists. By the 
first paragraph the legislature is required to declare affirma- 
tively what uses of money may lawfully be made. That is a 
very different thing from prohibition. It is required to 
declare affirmatively, to enumerate the uses which may be 
made; and by the second paragraph all other uses than those 
expressly authorized are prohibited, and are made a ground 
for forfeiture of office. That is a very small step in the direc- 
tion of the Corrupt Practices Act in force in England, which 
has worked such admirable results in respect of the election 
of the members of ParHament. Just so long as you under- 
take to enumerate your prohibitions upon the use of money, 
just so long evasions of those prohibitions will always be 
possible. But, if you enumerate the ways in which money 
may be used, affirmatively enumerate them, and then con- 
fine candidates for office, party committees, party agents, the 
agents of candidates, — confine them to those uses, and as a 
penalty for any knowing departure from those limitations, 
forfeiture of the office, you will have a very different state 
of affairs in respect to what we will all agree, I am sure, has 
become one of the great and crying evils of our poHtics; the 
enormous use of money in all our elections. 



THE POLITICAL USE OF MONEY 143 

The use of money has come to such a pass at the hands 
of both of the great poHtical parties in this country that we 
find enormous contributions necessary to maintain party 
machinery, to conduct party warfare; and the effect is that 
great moneyed interests, corporate and personal, are exerting 
yearly more and more undue influence in political affairs. 
Great moneyed interests are becoming more and more neces- 
sary to the support of political parties, and political parties 
are every year contracting greater debts to the men who can 
furnish the money to perform the necessary functions of 
party warfare. The object of this amendment is, by laying 
down a simple rule, to put an end, if possible, to that great 
crying evil of American politics. It may not accomplish 
everything, it may not be suflBcient to end the evil wholly, 
but it is a step in the right direction, and is of a character 
which it is proper to incorporate in the constitution. 

POLITICAL CONTRIBUTIONS BY CORPORATIONS 

On the same date, Mr. Root spoke as follows on the proposed section 7, pro- 
hibiting political contributions by corporations : 

The idea of section 7, Mr. Chairman, is to prevent the 
great moneyed corporations of the country from furnishing 
the money with which to elect members of the legislature of 
this state, in order that those members of the legislature 
may vote to protect the corporations. It is to prevent the 
great railroad companies, the great insurance companies, the 
great telephone companies, the great aggregations of wealth, 
from using their corporate funds, directly or indirectly, to 
send members of the legislature to these halls, in order to vote 
for their protection and the advancement of their interests 
as against those of the public. 

It strikes, Mr. Chairman, at a constantly growing evil in 
our political affairs, which has, in my judgment, done more 
to shake the confidence of the plain people of small means in 



144 GOVERNMENT AND CITIZENSHIP 

our political institutions, than any other practice which has 
ever obtained since the foundation of our government. And 
I beheve that the time has come when something ought to be 
done to put a check upon the giving of $50,000 or $100,000 
by a great corporation toward political purposes, upon the 
understanding that a debt is created from a political party to 
it; a debt to be recognized and repaid with the votes of 
representatives in the legislature and in Congress, or by the 
action of administrative or executive officers who have been 
elected in a measure through the use of the money so con- 
tributed. 

It is precisely because laws aimed directly at the crime of 
bribery so far have been ineffective, that we deem it advisable 
to provide limitations short of the actual commission of the 
crime. I apprehend that many poKtical committees and many 
candidates for office, if not most political committees and 
most candidates for office, wiU refuse to sanction a use of 
money which is prohibited in so solemn a manner, even though 
the prohibition be not affixed simply to a crime, and that that 
limitation being upon matters which are not done in the dark, 
but which are necessarily open and public to a great extent, 
would be much more easily enforced than the prohibition 
against the crime of bribery directly. I apprehend that many 
corporations, which are now called upon before every election 
to contribute large sums of money to campaign funds, would 
find in an absolute prohibition, with the penalty of the for- 
feiture of their charters, a reason why they would not make 
such contributions. I think it will be a protection to cor- 
porations and to candidates against demands upon them, and 
a protection to the people against the payment of considera- 
tion for contributions by them, to the injury of the represen- 
tation of the people. It is, I repeat, because of the difficulty 
of proving and punishing the crime of buying votes, that 
some other measures seem to be desirable. 



THE CIVIL SERVICE 

ADDRESS OF SEPTEMBER 21, 1894 

The following amendment to the constitution was adopted as section 9 of 

article V: 

Section 9. Appointments and promotions in the civil service of the state, 
and of all the civil divisions thereof, including cities and villages, shall be made 
according to merit and fitness, to be ascertained, so far as practicable, by exami- 
nations, which, so far as practicable, shall be competitive; provided, however, 
that honorably discharged soldiers and sailors from the army and navy of the 
United States in the late Civil War, who are citizens and residents of this state, 
shall be entitled to preference in appointment and promotion without regard to 
their standing on any list from which such appointment or promotion may be 
made. Laws shall be made to provide for the enforcement of this section. 

While this amendment was under consideration in Committee of the Whole, Mr. 

Root spoke as follows: 

I WISH to explain my vote. I am in favor of this amend- 
ment because I believe it puts into the constitution a 
principle, one of the most salutary of recent advancements in 
government. I believe in regard to that principle just what 
President Grant believed when, in his message to Congress 
in 1870, he recommended a provision for civil service reform, 
and said of civil service: " I would have it govern not the 
tenure but the manner of making all appointments." And 
said further: " The present system does not secure the best 
men and not even fit men for public office." I am not willing 
to stand, and 1 should regret to see my associates stand, 
upon any lower ground than that best and warmest of friends 
occupied twenty-four years ago. I believe, sir, that this 
principle ought to be incorporated in the constitution 
because it is right, and because I do not regard the words of 
party platforms as being mere buncombe, to be disregarded 
at will. Whatever may be the practice of the gentlemen who 
have been amusing themselves by sneers today upon the 
other side of the chamber as to regard for their party plat- 



146 GOVERNiVIENT AND CITIZENSHIP 

form, I believe, sir, in the civil service plank of the platforms 
to which I have given my adherence in years past, and shall 
vote accordingly today. 

I think, sir, we should adopt this amendment for another 
and practical reason. As the matter stands today, the court 
of last resort has ruled that the principle of civil service can- 
not be appUed to the important positions in the State Prisons 
and PubHc Works Department, and the effect of this amend- 
ment will be to extend this reform to state prisons and canals; 
and it will complete the adoption by this convention of the 
recommendations of the Prison Commission, which were that 
by constitutional amendment the system of contract labor 
should be abolished and the state prisons be taken out of 
pohtics. For these reasons, ]Mr. President, I am for the 
amendment as it stands, and I vote aye. 



THE CONVENTION OF 1915 

THE PRINCIPLES AND PRACTICE OF 
CONSTITUTIONAL REVISION 

ADDRESS AS PRESIDING OFFICER AT THE DINNER MEETING OF 

THE ACADEMY OF POLITICAL SCIENCE, NEW YORK CITY 

NOVEMBER 19, 1914 

THERE is an interesting parallel between the present 
constitutional convention and the one that preceded it. 
The last one ought to have occurred in 1887, twenty years 
after the convention of 1867. It did not please the party 
which happened to be in power in 1887 and for a number of 
years afterward to have the convention, because they could 
not get the arrangements just to suit them. At last, in 1892, 
everything was right and the convention was brought on; 
delegates were elected in 1893, and a convention was held in 
1894. But, lo, after everything was right and the convention 
was determined upon, there came a revolution in the politics 
of the state, and the other party elected a majority of dele- 
gates and controlled the convention. 

At this time it seemed to some one — I do not know to 
whom — that it would be a bright stroke of pohtics to 
advance the convention, and so a special election was held, 
and the convention was brought on by a narrow majority, 
composed in part, we already know through judicial decisions, 
of fraudulent votes. But lo, after the convention was thus 
determined upon, a revolution occurred and the other party 
controls the convention. 

And the lesson is that it does not pay to be too acute and 
adroit and cunning in American politics. The best way is to 
go on in a simple, direct, honest, faithful effort to help the 

147 



148 GOVERNMENT AND CITIZENSHIP 

working of our free self-government. Whoever does that 
will go ahead of the very smart politicians every time. 

I wish to mention another parallel, or contrast, between the 
two conventions which I think is cause for great satisfaction. 
In September, 1894, the convention of that year had substan- 
tially completed its work, and had taken a recess for a few 
days to enable the committee on revision to give the last care- 
ful consideration to the terms or form of the work. I went up 
from Albany to Saratoga, where the Republican convention 
was held. I found myself put upon the committee on resolu- 
tions; I attended the meeting of the committee, and some one 
produced a platform which had been prepared and which was 
handed to the chairman of the committee. The platform was 
read, or run through hastily, and the chairman was about to 
put it to a vote. I noticed that no mention was made in this 
platform of the work of the constitutional convention — a 
convention the majority of which was composed of Repub- 
licans, nominated and elected by Republican votes. We 
thought that the convention had done some good things; 
but it was not considered of sufficient consequence to men- 
tion in the resolutions of the Republican convention which 
met immediately after the work was completed. I made 
some observations upon that subject, and was very loyally 
seconded by a gentleman for whom I have always had the 
kindliest feeling, the late Timothy L. Woodruff, and a clause 
was put into the platform approving the work of the con- 
vention. This year I went to Saratoga to attend the Repub- 
Hcan convention, and there were present between twenty 
and thirty of the ablest leaders of opinion from all parts of 
the state of New York, who spent three days in discussing 
the question as to what position the Repubhcan party ought 
to take in regard to the work of the constitutional convention. 
That marks a change in the pubKc attitude towards questions 
of government. 



CONSTITUTIONAL REVISION 149 

And this meeting is something which twenty years ago 
never had a parallel. The members of that convention 
evolved out of their inner consciousness the provisions which 
seemed to them to be good for the state; and they had little 
help from anybody except the people who had a particular 
ax to grind. I don't care much whether people when they 
start are thinking right or wrong; I don't feel any apprehen- 
sion about the people being too radical, or being too conser- 
vative. So long as the thoughtful people of the Republic will 
take a real interest in questions of government, will think 
about them and discuss them, so long we are sure to come 
out right. 

Twenty years ago the thought and the feelings of the peo- 
ple of this state were asleep on fundamental questions of gov- 
ernment. Today the thoughts and the feelings of the people 
of this state are awake, and interest is keen. Consequently I 
feel the greatest confidence in the product — not so much in 
the deliberations of the convention itself, as in the force of the 
intelligent, instructed, and mature public opinion of the state, 
operating upon the minds of the members of that convention. 

Now let me say something practical about your work for 
the convention. The time is rapidly passing during which 
abstract discussion can be made useful. The convention will 
meet in the first week in April, and when that time comes it 
will be too late for the processes of general instruction. All 
the discussion that has been going on during these recent 
years, the discussion you are having now, must be brought 
into converging lines of practical suggestions — definite, 
certain, positive, practical suggestions, not discussions of 
theories of government, but helpful proposals as to what 
shall be written into the constitution. 

The convention meets, I say, the first week in April. The 
time during which any suggestions can be made after the 
meeting begins will be very short, because we soon run into 



150 GOVERNMENT AND CITIZENSHIP 

the heat of summer. There are three stages of consideration 
of every proposal: first, consideration in committee; next, 
consideration by the convention, and at the same time, the 
general pubHc verdict upon the reports of committees; and 
then, of course, consideration by the public after the con- 
vention has done its work. But the important, vital period 
of consideration is consideration in committee. That has 
got to be done in the early part of the convention, and the 
committee reports have got to be made early in order that 
there may be adequate discussion on the floor of the conven- 
tion. Any one who has ideas as to what ought to go into 
this new constitution, or what amendments ought to be 
made to the old constitution, should get to work and prepare 
his ideas so that they can be presented to the convention 
promptly in April, so as to let the committees get to work at 
them. The convention will be obliged to fix an early date 
after which it will not receive and will not permit the intro- 
duction of new amendments. Otherwise the committees 
could never complete their work, and therefore the conven- 
tion could never get at its work in considering committee 
reports. The time for you to bring to bear upon this import- 
ant work the results of all your study and thought and dis- 
cussion is very brief. You should lose no time in getting 
down to practical results. 

Of course there are two quite distinct branches of work 
for the convention. One is the machinery of government. 
Our social and industrial conditions have changed vastly in 
twenty years. The business of government in this great 
state has outgrown the machinery of government. Much 
blame that is visited upon individuals is really due in a great 
measure to a defective system — a system adequate in 
simpler times, when the work to be done by government was 
quite within the experience of ordinary everyday life, and 
when any member of the legislature or of the executive 
branch could get on with it without much special study. The 



CONSTITUTIONAL REVISION 151 

increase in the multiplicity and complexity of things to be 
done calls for a shifting of the centers of activity. When a 
legislative body has more business to do than it can properly 
consider, there is only one avenue of relief, and that is a con- 
tinual increase of delegation of power. What the legislature 
could readily have done fifty years ago, the legislature could 
not half do today, and it must delegate the other half to 
some one else. That delegation of authority to subordinate 
oflScers or bodies that must exercise discretion formerly with- 
held from them, that must make rules and regulations upon 
matters formerly dealt with by statute, requires careful 
adjustment of governmental machinery, and we have not 
the machinery properly adjusted for that necessary process of 
government. That is in general the occasion for the practical 
overhauling of the machinery of our state government. And 
as to that, everybody who has practical knowledge about the 
affairs of government ought to put his mind to work to see 
what useful suggestions he can make; for there will be a 
thousand men outside of the convention with practical 
experience about the operations of government and useful 
ideas regarding it, to one in the convention. 

The other field is the field of the principles of government, 
a field in which our American constitutions occupy a place of 
their own in all the world, a place of their own in all the his- 
tory of government. So far as the principles of government 
declared in our constitutions are right they do not change. 
No development of social or industrial life changes a true 
principle. And there are certain dangers to be considered 
when we turn om* attention to that field of the convention's 
work — the reconsideration of the fundamental principles of 
government which are to direct, limit, control the operations 
of the government of the state. 

In the first place, there is always the danger coming from 
the people who grow faint-hearted, because the path of lib- 
erty and justice is narrow and a hard one to tread. You see 



152 GOVERNMENT AND CITIZENSHIP 

sometimes a young man who begins life with brilliant talents, 
undertakes this profession, and presently, finding it difficult, 
turns to another, and after a while leaves that and turns to 
another, and then to still another. His hfe is wasted. There 
is a Uttle tendency of that kind in government. No great 
principle can be appHed year after year, and generation after 
generation, where the people develop incompetency, and 
cease to grow in intelligent capacity. No principle can be 
applied without meeting obstacles, and being surrounded by 
inconveniences, and having the faint-hearted say, " Let us 
find some other way to work out our salvation. Oh, to 
abandon the hard and painful and trying effort! " 

To grow in power, to grow in capacity for true Kberty and 
true justice by holding fast to true principles, is hard. There 
are many who grow tired, who would find some easier way; 
but the easier way will but lead from the true path into some 
other easy way, and that into some other. Seff-govem- 
ment, which is the basis and essence of our free republican 
government, is hard and discouraging. It requires courage 
and persistency and true patriotism to keep the grip on the 
handle of the plow and drive the furrow through. But 
wherever there is a true principle embodied in our consti- 
tution, we must stand by it and maintain it against all 
patent nostrums. 

On the other hand, there are indications extensive and 
numerous of a reaction from certain extreme views, from cer- 
tain enthusiasm for new devices in government. But we 
must remember that if reaction goes too far the pendulum 
will swing back the other way. All our statements of prin- 
ciple must be re-examined, not with faint hearts, but with a 
sincere purpose to ascertain whether the statement is sound 
and right, and whether it needs modification with reference 
to the new conditions in order more perfectly to express the 
principle. 



CONSTITUTIONAL REVISION 153 

I feel very differently about this convention from the way 
in which I felt twenty years ago, because it seems to me that 
upon this field of action dealing with the fundamental prin- 
ciples of our government we are performing the highest and 
most sacred duty that civilization ever demands from man. 
All the little questions of form and method may be right or 
wrong; we may solve them rightly or wrongly. If they are 
wrong they will be changed. If the law is wrong it will be 
changed. If it is not perfect it will be amended. But when a 
people undertakes to state fundamental principles of its gov- 
ernment, it is putting to the test its right and its power to 
Kve. Millions of men in western Europe today who are 
battling with each other, dying by the thousands, are fight- 
ing upon one side or the other of two different conceptions of 
national morality. Homes are desolated, children left father- 
less, because two great principles of national morality have 
met in their death-grip. The nation which lays hold of the 
truth, of the true principles of Hberty and justice will live. 
The nation that is wrong, the nation that fails to grasp the 
truth, will die. In our effort or attempt to make and re- 
make the constitutions of our beloved country we are putting 
to the test the very life of the country. To that task we 
should address ourselves with the prayer that we may be free 
from selfishness. That task should be performed with a 
sense of duty to one's country that rises to the level of 
religion. With the help of all the good men and women of 
our state we should be able to keep this convention right, 
upon the eternal principles by which alone our free and 
peaceful and just country can continue. 



THE BUSINESS MEN AND THE CONSTITU- 
TIONAL CONVENTION 

ADDRESS BEFORE THE MERCHANTS' ASSOCIATION OF NEW YORK 

MARCH Sd5, 1915 

In the address preceding, Mr. Root spoke in advance of the constitutional con- 
vention upon the principles and practice of constitutional revision. In the present 
address, also delivered before the opening of the convention, he spoke of the 
business men of the state and the constitutional convention. As Mr. Root refers on 
two occasions in this address to Mr. Choate, it is proper to quote a few paragraphs of 
Mr. Choate's remarks in introducing Mr. Root, in order that the reader may under- 
stand the relations existing between these two men. Mr. Choate said: 

It is fifty years about since I first made the acquaintance of Mr. Root, a 
stripling as he appeared to me then, just come down from Hamilton College 
and admitted to the bar. I was some twelve or foiui;een years ahead of him. I 
had not the least idea that he would ever catch up at all. But he did catch up 
in a very few years, and it was not long before Bangs and Parsons and Carter 
and I, who were doing a good deal of the heavy work at that time, found him 
going neck and neck with us, and it did not take very long for us to find that 
he was forging ahead of us all, . . . 

I will tell you the secret of Mr. Root's success. In the first place, of course, 
it is " the sound mind in the sound body," a great brain, a well-knit frame, and 
exceedingly good habits; but then, besides that, he was an infinite worker; 
I think he worked flying; wherever he moved, he was working, and that 
accounted for his success at the bar. 

But I will tell you what I regard as the great feature of his personal and pro- 
fessional career, and that is that from the first he was ready to forego the profits 
of his practice to render public service, . . . 

I NEVER listen to Mr. Choate without recalling the sense 
of incompetency and despair with which I used to sit and 
see him carry juries away and steal verdicts from my unfortu- 
nate cHents. But it is impossible not to forgive him. He 
contributes so much to my happiness and the happiness of 
all of his countrymen that I can forgive him even for the 
fatal injury he does me in setting up a standard that I cannot 
possibly live up to. 

155 



156 GOVERNMENT AND CITIZENSHIP 

I thank you, gentlemen, for this greeting and for the great 
comphment of your gathering here at a luncheon which is 
avowedly for the purpose of making me the guest of the 
Association. There is but one disadvantage in the vastness 
of this assemblage, and that is that it is necessary in talking 
with you to talk very loud, and it is quite impossible for any 
one, in loud tones of voice, to be quite as sensible as he can 
sometimes be in ordinary conversation. There is always a 
temptation to attempt oratory, and as a rule oratory and 
sense are to be found in inverse proportions. 

There is a substantial satisfaction to me, not all personal, 
in this great gathering; it is a satisfaction due to perceiving 
that the business men of New York are at last taking an 
interest in their own public affairs; that you are at last 
taking an interest in the over-head charges of all your busi- 
ness, which are created by the conduct of government; that 
you are at last taking an interest, before it is too late, in the 
law and the administration which create opportunity or 
hamper enterprise. Do not think that I am dropping into 
oratory when I say that. There are great parts of the people 
of the United States who feel that the man who makes any 
money by successful business is a robber, and it is time that 
that feeling was dispelled and that that view should become 
a vagary of the past. 

Now, Americans must always keep their faces toward 
the future, and the thing that is admittedly before us in a 
public way in this state is the revision of the state con- 
stitution. There are a few things I want to say to you 
about that. 

In the first place, I bespeak your interest for the work of 
the constitutional convention. It needs speaking for. The 
votes in this state upon questions of constitutional amend- 
ment have ordinarily been most pitiful in number; only 
from a quarter to a half of the people voting at our elections 



BUSINESS MEN AND THE CONVENTION 157 

have taken interest enough to cast votes for or against 
amendments of the constitution. It seems sometimes as if 
our people were interested in nothing but personalities, and 
that we wanted a government of men and not a government 
of laws. It seems sometimes as if our people do not realize 
that it makes any difference to them what laws they have or 
how they are administered. I am glad to see that there is a 
change in that opinion. I beg you to follow with interest the 
work of this convention and to take sufficient interest in it to 
consider and discuss and vote upon the results. 

Let me tell you that it is none too soon for you to be inter- 
ested. The business man of America has been at a heavy 
discount of recent years. All other elements of our popula- 
tion have organized and been active in their own behalf. 
The agriculturalists have organized and their representatives 
have been heard from. The labor men have been organized 
and their representatives can be seen day by day in the gal- 
leries of the two Houses of Congress, watching the men who 
are making the laws to see whether they shall win the great 
prize of the labor vote or lose it by independence. 

The business man alone has seemed to be paralyzed of 
recent years, and the delightful thing about this meeting is 
that this is something besides paper organization. There are 
plenty of concerns on paper — there are plenty of men going 
about and talking about the great interests they represent — 
and they don't represent anybody but themselves. But here 
is evidence that the men who are represented are really behind 
their representatives — that there is something besides paper 
organization, something besides oratory stirring in the inter- 
ests of the great industry and commerce and production of 
the United States. And if you will follow the line that you 
have entered upon it will soon come to be no longer true that 
the pursuit of profitable business is to be regarded as rob- 
bery. For after all it is you, it is the voters of New York, 



158 GOVERNMENT AND CITIZENSHIP 

who must pass upon a revision of the constitution. When 
the work is done and submitted you must vote for it or 
against it; you must act upon it ignorantly or advisedly, 
and if you do not take interest enough to be informed and 
to inform your neighbors about the merits of it, it will go 
by default. 

A second thing I want to say is: Do not expect the con- 
vention to do too much. It ought not to do too much; it had 
better do too httle than too much. It is not the office of the 
convention to turn everything upside down and to sweep all 
our system away and inaugurate a new one. Our laws, 
fimdamental and ordinary, are to be based upon our history. 
It is not the function of legislators in Congress or legislature, 
or constitutional convention to put into a law what happens 
to occur to them as being a pretty good thing. It is their 
function faithfully to register the customs and mature con- 
clusions of the people whom they serve, so that each succes- 
sive step in legislative development may be but a record of 
the growth and development of our life. 

We are attracted from day to day by new schemes of reform, 
many of them most praiseworthy, many of them most neces- 
sary. Today we are interested in this one, and tomorrow 
in another and the next day in a third. But after all, the 
all-important thing is the preservation of the great body of 
the rights and Hberties of our seK-governing people which 
have been growing year by year, century by century, since 
Magna Charta, and under which we Hve now in peace and 
order and opportunity for posterity and for growth in spirit 
and in power. 

It will be the first and greatest duty of the convention 
which is about to meet to preserve aU that is good, all that 
has been approved of, all that has been tried in our system 
of free self-government. I would rather see a legislature 
praised for doing little and doing it well than see it praised for 



BUSINESS MEN AND THE CONVENTION 159 

doing much. A very wise old friend of mine said, many- 
years ago, " It does not make so much difference how much a 
man does as what he does." 

We are seeing now in the aewspapers remarks that this 
legislature has not done much. I had a count made not long 
ago in the Library of Congress of the number of laws that had 
been passed in the five preceding years. That was made last 
year, and in the five years ended the first of December, 1913, 
I found that over sixty-two thousand laws had been passed 
by Congress and the state legislatures in this country in that 
five years; and I found that there had been reported during 
that five years and published in six hundred and thirty vol- 
umes of reports of the courts over sixty-five thousand 
decisions of courts of last resort in this country. Now even 
Mr. Choate does not know them all by heart. How can you 
possibly know them ? How can you conduct your business 
and keep out of jail ? So, give credit to the convention for 
what it does not do. 

A third thing is: Do not be out of patience with us if we 
discuss at wearisome length the proposals that are brought 
before the convention. Remember that long discussion, 
free, open, unrestrained and unchecked discussion in repre- 
sentative assemblies under our form of representative govern- 
ment, is the substitute for war. In Mexico today you see the 
other method of conducting government. You must have, 
among a virile people, differences of opinion, with men adher- 
ing to their opinion with determination; and there are only 
two ways to reach the conclusions that are necessary for 
peace and honor. One is the way of discussing them, argu- 
ing them out, getting to conclusions by long and painful dis- 
cussion, and the other is by shooting the man that is opposed 
to you. Our system is the first, so when we talk for long days 
in the heat of summer over the questions we have before us, 
remember that we are a great Peace Society. 



160 GOVERNMENT AND CITIZENSHIP 

But there is one thing which the convention, I feel, ought 
to do. The business of government in this state, and in most 
of our states, has outgrown the machinery; or many of our 
states, I wiU say, have outgrown the machinery of govern- 
ment. Our machinery, executive and legislative and judicial, 
was estabHshed in simpler times; it was estabhshed when 
government interfered much less in the affairs of the people 
than it is compelled to do now. The change from individual- 
ism, from individual activity to combined activity, has made 
it necessary for government to do many things which were 
formerly left to the individual. 

' We are all dependent upon each other; we are all interde- 
pendent. The great combinations of capital and of labor; 
the dependence of each man, in his ordinary life, upon the 
activities — the continued activities — of a multitude of 
other men, for his breakfast, his Hght, his heat, his access to 
the street, the preservation of his health or that of his family, 
for education, for transportation, all make it necessary that 
there should be government regulation of the activities of life. 
Now in these later days of comphcated government activity 
affecting the vast multitude of interests, of occupations and 
of social relations in our state, the time clearly has come 
when the machinery of government shall be reformed so that 
it shall be competent to attend to the business. We are 
running a railroad with a stage-coach organization. 

We should learn a lesson from those great business organ- 
izations which have reduced the price of production and 
enlarged the boundaries of commerce, and have made the 
production of wealth in these recent years the subject of the 
astonishment of mankind. We should learn a lesson from 
business, from business men, from the great business geniuses 
of our country, and apply that lesson to the affairs of our 
government. 



BUSINESS MEN AND THE CONVENTION 161 

The first thing — the one all-important thing — is to make 
the organization so that responsibility shall be fixed. You 
and I don't know who is really responsible in our state 
government for what goes wrong or for what goes right. We 
don't know who really are to be blamed, and we don't know 
who really ought to be praised; and there is no way of having 
effective service in government any more than in a business 
enterprise unless you can put your finger on the man who is 
responsible for this error, or should be commended for that 
success. 

And in order that there shall be responsibility, power must 
go with the responsibility. You cannot hold men responsible 
unless you give them power. The Governor of the state to- 
day is being unjustly criticised for not doing things that our 
system withholds the power to do from him, and that will be 
so until we have improved the system on business principles. 

When that has been done, we can hold somebody account- 
able. But, gentlemen, the doing of it is going to meet with 
obstacles. The doing of it is going to turn some people out of 
office — is going to withdraw from some people the oppor- 
tunities for office which they have been looking forward to. 
Individual interests and local interests and special corporate 
interests are going to feel themselves interfered with. It 
often happens, when public interest has not been aroused, 
that it seems in the course of government as if the only con- 
sideration that had no friends was the consideration that 
rested only upon the pubUc good. It is for you, with your 
practical business sense, to put yourselves behind whatever 
the convention may find it practicable to do for the promo- 
tion of the public interests, and to give it the force and 
momentum of your support as against all private and local 
individual interests and prejudices; and I can assure you 
that this gathering of the business men of New York will 



162 GOVERNMENT AND CITIZENSHIP 

give greater life and hope and courage to the members of the 
coming constitutional convention who are sitting about me 
at this table. One thing we shaU miss, and that is the noble 
and courageous and brilliant leadership of the man who 
presided over the deliberations of the last convention. 

We shall miss him sadly, but. Heaven be praised, his spirit 
and the benign influence of his character and the inspiration 
of his genius wiU still be with us, and we shall do all that we 
can fairly be called upon to do — our best — for the interests 
of our beloved state and our beloved country. 



OPENING ADDRESS 

AS PRESIDENT OF THE CONSTITUTIONAL CONVENTION 
STATE OF NEW YORK, APRIL 6. 1915 

The delegates to the constitutional convention of 1915 were elected, sixteen at 
large and three from each of the fifty-one senatorial districts of the state, making a 
total membership of 169. 

The convention met in the assembly chamber in the Capitol at Albany on 
AprU 6, 1915, and proceeded to elect Mr. Root its president by a vote of 129 to 32 for 
Mr. Morgan J. O'Brien. The election was immediately made unanimous and 
thereupon Mr. Root delivered the following address: 

I THANK you for the great honor that you have conferred 
in making me your president. I prize very highly the 
confidence which it impHes. The presiding officer of the 
convention can accompKsh nothing of value without your 
unselfish support, but I feel sure of having that, and with it 
I shall try to administer fairly the rules of parliamentary law 
which are based upon the experience derived through cen- 
turies of growth in representative government. Observance 
of such rules is indispensable to the free, open, public discus- 
sion in representative assemblies essential to the conduct of 
popular government. Upon the real freedom and sincerity 
of our discussions and the evidences of matured judgment 
which we present in assigning the reasons for our conclusions 
will depend to a great degree the approval or rejection of our 
labors; for the people themselves will pass upon our work in 
the light of the reasons we present and our revision will 
receive its effect by their vote and not by ours. 

The most obvious duty before us is to scrutinize attentively 
the framework of the state government in order to ascertain 
in what respect, if any, the established institutions are insuffi- 
cient or ill-adapted to accomplish the ends of government. 
Great changes have come in the industrial and social life of 

163 



164 GOVERNMENT AND CITIZENSHIP 

the state since the last convention. To attain the ends 
which every one agrees ought to be attained it appears neces- 
sary that government shall interfere to a much greater extent 
than in former times with the complicated and interdepen- 
dent life of the people. The business which government is 
required to undertake has vastly increased both in magni- 
tude and variety and there is a widespread feeling that in 
some respects the business of the government has outgrown 
the organization of government. Many thoughtful citizens 
consider that our system of taxation, appropriation, and 
expenditure of moneys, which worked very well in simpler 
times, is now quite inadequate. Many think that the strictly 
municipal interests of our great cities require more protection 
in the way of home rule provisions than is afforded in the 
present constitution. Many think that the natural resources 
of the state, particularly the forests and water power, should 
be brought under a system of conservation and utilization 
having the stability of a constitutional basis. 

Many think that our ballot has become too complicated 
and unwieldy and that the real power of the voter over the 
affairs of government would be increased if there were fewer 
candidates to be voted for, and fewer subjects for the voter 
to pass upon, at the same time. Many think that the great 
multitude of separate offices and commissions which have 
been created from time to time to meet new demands for 
official action should be brought into more definite relations 
with each other and imder more systematic supervision and 
control. 

These and other subjects have enlisted the interest of 
respectable bodies of citizens who are entitled to have from 
this convention attentive consideration of their opinions. I 
wiU not continue the enumeration or enter upon a discussion 
of the subjects to be presented further than to say that we 
have before us in our own country signal examples of great 



OPENING ADDRESS 165 

business organizations for production and commerce, through 
which conservation of resources, economy of expenditure, 
and effectiveness of action have been attained to a very high 
degree, and citizens concerned in the great business of 
government may well learn a lesson from these examples. 

The fundamental principle to be applied I take to be that 
responsibility and power shall always go together. Respon- 
sibility without power can never be justly enforced, and f>ower 
without responsibility can never be duly controlled. Vague, 
indefinite, uncertain, overlapping, and conflicting grants of 
power and divided responsibility make good administration 
impossible. Every public ojQScer and agent should have clear 
and definite authority to do the acts required of him and 
should have some one over him with authority to hold him 
to responsibility, from the lowest employee to the highest 
elected oflacer whom the people themselves hold to respon- 
sibility at the polls. Grants of power should be clear and 
definite, and the responsibility should be open, public, 
ascertained, and unmistakable, so that praise and blame, 
reward and punishment, may be assigned by the people 
themselves with justice and certainty. 

In all our labors let us keep in mind that it is our duty, so 
far as our powers go, to preserve as well as to improve. While 
we seek to adapt the machinery of government to changing 
conditions, we are still to preserve the great body of rights 
and liberties which have grown through many centuries of 
political and juridical development, and under which we have 
so long been blessed by peace, order, justice, and individual 
liberty and opportunity. It is not for us to tear down 
institutions based upon the customs and growing out of the 
life of the people whom we serve, merely for the purpose of 
substituting in their place creations of our own devising, 
however confident we may feel in the success of the experi- 
ments we may contemplate. 



166 GOVERNMENT AND CITIZENSHIP 

No wise legislator will under- value the power for peace and 
order and progress which lies in the traditions of respect, the 
conformity to custom, and the habit of obedience among a 
people towards their own estabhshed, though perhaps illogi- 
cal, institutions. Where changes are needed they should be 
made fearlessly and thoroughly but in such a manner, with 
such relation to existing custom and opinion as to be natural 
developments from the life of the people of the state; and in 
a state with such a history as ours the burden of proof rests 
always upon the advocates of change. 

There is one other duty which a constitutional convention 
must always contemplate, although the constancy of our 
people to the pohtical ideals they have long followed may 
make it unnecessary for us now to give much of our time to 
its consideration. It is the proper office of a constitution not 
merely to provide the framework of government, but to 
declare the principles of political morahty and the rules of 
right conduct which are to control the state in its relations 
to the individual citizen. In that field the action of a con- 
stitutional convention is quite unlike ordinary legislation. 

In prescribing constitutional limitations and framing bills 
of right, a convention acts impersonally, in the abstract, 
without regard to particular occasion or special instance, and 
free from the excitements, the passions, the interested 
motives, the personal attractions and repulsions, which so 
often affect the ordinary affairs of government. Yet the con- 
clusions to be recorded are of vast practical importance, for 
they determine not alone the precise and formal limitations 
upon official power, but the spirit in which government will 
be conducted and the tendencies of the nation's life. 

Under the American conception of government the power 
of the state and of the nation and of all their agents equally 
with the powers of the individual man, are subordinate to 
rules of right. Under the view with which this government 



OPENING ADDRESS 167 

was founded and exists there is a duty of public morality as 
truly as there is a duty of private morality. There can be no 
sovereignty superior to the law of morals. Above public 
power stands always the conception of public right. The 
answer to the question, " What is the rule of public morality; 
what is the test of public right ? " is not easy. It is to be 
found, I believe, not in the reasoning of acute and highly 
trained specialists, but in the conscience of the great body of 
the people when the people are instructed, law-abiding, and 
liberty-loving, and when their voice is free from the impulses 
and distractions of special occasions, interests and desires. 

Under our system, from generation to generation, the 
constitutional convention is the interpreter of the conscience 
of the people of its time in its answer to this vital and all- 
important question, " What is the moral law that rules our 
state and through what limitations shall our exercise of pub- 
lic power be made to conform to that law ? " In entering 
upon the performance of that solemn and lofty duty, let us 
seek for a new birth in our souls of unselfish patriotism and 
strive for the power of clear vision and right thinking. We 
have in America one unchanging guide in the political philo- 
sophy of that great instrument which gave birth to the nation. 

" All men," says the Declaration of Independence, " are 
endowed by their Creator with certain unalienable rights. 
To secure these rights governments are instituted among 
men." That is a distinct denial and reversal of the theory 
which was held by the ancient repubhcs and is still widely 
held and advocated, and which begins with the state as the 
basis of civil society, and derives the rights of the individual 
only as a member of the state. 

With us the rights of the individual citizen are not derived 
from the state, but are independent of it; and all the powers 
of government find their justification only in their adapta- 
tion to secure the rights of the individual. The freedom of 



168 GOVERNMENT AND CITIZENSHIP 

the individual will is limited only by the equal rights of all 
other individuals. The rights of the individual citizen to 
Hfe, to liberty, to the pursuit of happiness, are held by inde- 
feasible title. He cannot rightfully be deprived of those 
rights by legislatures or executives or majorities or armies. 
To secure the equal rights of every one of the ten million 
people of the state of New York is the end and object of all 
that we are to do; and an affirmation of the sacredness of 
those equal and inaHenable individual rights, is the primary 
maxim of the poHtical morality which is to direct our conduct. 

This is the seventh of the conventions meeting in orderiy 
succession during the one hundred and thirty-nine years 
which have elapsed since New York was a colony. One who 
reviews the labors of the men that strove with the problems of 
then- day m 1777, in 1801, in 1821, in 1846, in 1867, and in 
1894 cannot fail to be impressed by the evidence that the 
problems of government never end. Settled for the moment 
they continually reappear in sHghtly varying forms upon the 
requirement of new conditions. Yet the unending effort 
for solution is the process which gives direction to the 
development of national life. 

Above all our predecessors we are fortunate in serving a 
community itself inspired by an unprecedented interest in 
the subjects with which we are to deal, appreciating their 
importance, eager in discussion, fruitful of suggestion, de- 
sirous to contribute to a wise conclusion. That condition is 
a cheerful harbinger of the future, for indifference is the 
deadliest foe of democracy. A people ahve to its problems 
is certain to move forward. If by thorough study and prac- 
tical sense and sincerity of purpose we can lead this great dis- 
cussion among the self-governing people of the state, even 
though not a Hne we write were voted into the constitution, 
this convention will not have failed in its purpose of useful- 
ness to its generation. 



MAGNA CHARTA 

ADDRESS BEFORE THE CONSTITUTIONAL CONVENTION IN COM- 
MEMORATION OF THE SEVEN HUNDREDTH ANNIVERSARY 
OF MAGNA CHARTA, JUNE 15, 1915 

THE convention appointed by the people of the state to 
revise the fundamental law under which we live, as to 
the framework of government and the principles of public 
morality, has deemed it appropriate to arrange for a cele- 
bration of the seven hundredth anniversary of the signing 
of Magna Charta. 

That was a great event in English history. The restrained 
and unemotional English themselves, in their most formal 
public documents, describe it as the Great Charter of Eng- 
lish liberty. But it is not merely as a great event in English 
history that we celebrate it. It was a great event in our 
history, and it was a great event in the world's history. 

That instrument which the barons compelled King John 
to sign contained no rhetoric; it did not philosophize; it was 
a plain, practical assertion of common rights fitted to the use 
of the people of England of that day. Hundreds of great 
declarations of principles have been made and forgotten since 
that time, but this simple, homely growth from the life of the 
English people has endured these seven hundred years. 

The Charter was not a gift of privilege by the monarch. 
Hundreds of monarchs have granted privileges to their sub- 
jects since that time and the privileges have been forgotten, 
and the monarchs with them. It was an assertion of right by 
men who were willing to fight for their rights, and to die for 
them. And during all these seven hundred years, the men to 
whom that has been the Great Charter of liberties have been 
willing to fight for their liberties and to die for them. 



170 GOVERNMENT AND CITIZENSHIP 

But even those qualities were not the essential thing which 
kept alive this wonderful instrument, for seven hundred 
years. The essential thing was that the Great Charter 
asserted a principle of human liberty upon which rests the 
development of the freedom of the world. It asserted — it 
did not ask for — it asserted the rights of EngHshmen as 
against their government, and superior to their government. 
Without rhetoric, without reasoning, without philosophy, it 
asserted those rights which, nearly six hundred years later, 
the sons of those Englishmen crystallized in the Declaration 
of American Independence, as the inalienable rights of man, 
to secure which governments are created. 

There are but two underlying theories of man in the social 
relation to the state: One is the theory of the ancient 
republics, under which the state is the starting point from 
which rights are deduced, and the individual holds rights 
only as a member of the state. That was the theory of 
Greece, and Rome, and the Italian republics. The other is 
the theory of the Great Charter, the theory of the Habeas 
Corpus Act, of the Statute of Treasons, of the Petition of 
Rights, of the Bill of Rights, of the Massachusetts Body of 
Liberties, of the Declaration of Independence, of the Ameri- 
can RepubHc, that the individual has inalienable rights, of 
which no government may deprive him, but to secure which 
all government exists. 

The first theory, of the ancient republic, that the state is all 
in all and the individual derives his rights as a member, leads 
to the logical and inevitable result that the state is free from 
those rules of morahty by which individual men are bound. 
It is the principle which was applied in Belgium. It is the 
principle which was applied to the Lusitania. 

The other, asserted in the Great Charter, by logical and 
inevitable result binds the state by the rules of morahty 
which the individual recognizes; and this supremacy of that 



MAGNA CHARTA 171 

rule of right, governing all men and all states and powers, is 
the hope of mankind. 

The assertion of that great and eternal principle seven 
hundred years ago we celebrate as the greatest of all events in 
the political development of modern liberty. 



IMPEACHMENT 

ADDRESS BEFORE THE CONSTITUTIONAL CONVENTION 
AUGUST 20, 1915 

The constitutional convention of 1915 proposed to amend article VIII, sec- 
tion 15, of the constitution of 1894, so that it would read as follows, the amendment 
being indicated in italics: 

Section 15. The assembly shall have the power of impeachment, by a vote 
of a majority of all the members elected. The coiu-t for the trial of impeach- 
ments shall be composed of the president of the senate, the senators, or the 
major part of them, and the judges of the court of appeals, or the major part of 
them. On the trial of an impeachment against the governor or lieutenant-governor, 
neither the lieutenant-governor nor the president of the senate shall act as a member 
of the court. The court for the trial of impeachments may order all or any part of 
the testimony to be taken and reported by a committee composed of members of the 
court, except that the impeached officer must be alUrwed to testify before the court if he 
80 desire. No judicial oflBcer shall exercise his oflSce, after articles of impeach- 
ment against him shall have been preferred to the senate, until he shall have 
been acquitted. Before the trial of an impeachment the members of the court 
shall take an oath or affirmation truly and impartially to try the impeachment 
according to the evidence, and no person shall be convicted without the con- 
currence of two-thirds of the members present. Judgment in cases of impeach- 
ment shall not extend further than to removal from office, or removal from 
office and disqualification to hold and enjoy any office of honor, trust or profit 
under this state; but the party impeached shall be liable to indictment and 
punishment according to law. 
When this article, as amended, was before the Committee of the Whole, Mr. Root 
made the following remarks: 

AN impeachment is not a criminal proceeding. The 
express provision of our constitution, the common pro- 
vision of constitutions, is that judgment shall not extend 
beyond removal from oflSce to which disqualification from 
future holding of oflSce maybe added and the party impeached 
may still be indictable and punished, according to law. 

These very precise and rigid rules of protection of defen- 
dants in criminal cases, are out of tenderness of the law for 
liberty and life, which are not called in question at all in 
impeachment cases. An impeachment is purely a matter 

173 



174 GOVERNMENT AND CITIZENSHIP 

between the people and their poHtieal agent, and the great 
obstacle to the successful use of impeachment as a means of 
enabling the people to deal with their unfaithful servants 
arises from the fact that an impeachment stops the wheels 
of government. The injury to the conduct of the affairs of 
government is so great that it does not pay to impeach unless 
there is a very, very serious case and a scandal which leads, 
the public to demand that there shall be action. And there 
ought to have been more than four impeachments in this 
state, and a great many more. We would have had a better 
government and a more contented people if this remedy had 
been more practical and available so that more imfaithful 
officers should have been called to account. 

The inadequacy of the remedy has been such that over a 
large part of our country people have been demanding — 
what ? Not that public officials should have their office 
secured by the right of trial before a court and impartial 
tribunal, with the right to be confronted with the witnesses, 
with the right to specific charges, with the right to require 
that the charges be affirmatively proven, with the right of 
judicial judgment upon the proof, but that they should be 
liable to be recalled by a popular vote cast upon the informa- 
tion obtained from the columns of the newspapers. I say it 
is the inadequacy of the remedy of impeachment which has 
led to the wide-spread demand for recall and those of us who 
beHeve that that would be a great misfortune are bound to 
make the legal remedy, in which is opportunity for the public 
official to require proof, be confronted with the witnesses and 
to have opportunity to cross-examine and give his evidence 
and have judicial judgment — make that so adequate that 
we will hear no more of this demand for recall. 

I have sat for weeks in the trial of an impeachment case, 
feeling that the injury to the interests of the people of the 
country through the stoppage of the wheels of government in 



IMPEACHMENT 175 

order to listen to a large mass of testimony that I knew would 
not be disputed, made it hardly worth while to get rid of the 
unfaithful official. 

This provision is one which will permit every really impor- 
tant witness to be heard before the court. Of course, if a 
showing is made, if a suggestion is made, that a particular 
witness is a critical one, that counsel want court to see him 
and hear him when he testifies, then order the testimony to 
be taken before him. But the great body of testimony is not 
of that character. Of course, counsel for the defense requires 
the other side to prove their entire case, whether they have 
any idea of controversy over the proof or not, and it is that 
great mass of routine, customary, but obligatory testimony 
which ought to be taken by a commission composed of mem- 
bers of the court and reporting, so that the great mass, the 
great body of the chief legislative assembly of the state and 
of the judges of the Court of Appeals shall not be obliged to 
waste their time while it is being taken. 

It seems to me that this is a practical, sensible piece of 
government business, for us to make this method of dealing 
with unfaithful officials more available and useful. I hope 
the amendment will prevail. 



ON ENDING THE SCANDAL OF THE 
LAW'S DELAYS 

ADDRESS OF AUGUST 19. 1915 

Article Vlll of the proposed constitution dealt with the judiciary, and section 6 
thereof was entitled the Civil Practice Act. This section made it the duty of the 
legislature to act with all convenient speed upon the report of the Board of Statu- 
tory Consolidation transmitted to the legislature on April 21, 1915, and to enact a 
brief and simple civil practice act and to adopt a separate body of civil practice 
rules for the regulation of procedure in the Coiui; of Appeals, the Supreme Court and 
county courts. Secondly, at intervals of not less than five years the legislature was 
authorized to appoint a commission to consider and report what changes, if any, 
there should be in the law and rules governing civil procediu-e. Fiu-ther, the legisla- 
ture was forbidden to " enact any law prescribing, regulating, or changing the civil 
procedure in the Court of Appeals, Supreme Court, or county courts, unless the 
Judges or Justices empowered to make and amend civil practice rules shall certify 
that legislation is necessary." It was finally declared that after the adoption of the 
civil practice rules by the legislatiu*e the power to alter and amend such rules and to 
make, alter and amend civil practice rules should vest and remain in the courts of the 
state, to be exercised by the judges of the Court of Appeals and the justices of 
the Appellate Division of the Supreme Court or by such judges or justices of the 
Coiut of Appeals, the Supreme Court and the county coiuls as the legislature might 
provide. 

When this section of the constitution was under consideration in the Committee 
of the Whole, Mr. Root delivered the following address: 

I WANT to say a few words which are stirred up by the 
appeal to memory by the gentleman from Saratoga. 
I remember the conditions which existed prior to the adop- 
tion of the Civil Procedure Act of 1875, going back a good 
many years before. I was in the thick of the controversy 
long before Montgomery Throop changed it in his great tome 
which was called The Code of Civil Procedure, and the contro- 
versy was between the old common-law practice and the 
advocates of the reform procedure which went all over the 
country. That reform was accomplished under the express 
direction of the constitution of 1846. . . . 

177 



178 GOVERNMENT AND CITIZENSHIP 

Under the old common-law system practice had become 
so complicated and difficult that it was hard for an honest 
man to get his rights. There is a good deal of human nature 
in that. It has been so since the laws of the Medes and 
Persians were formulated; it has been so since the day of 
Egypt's power. Wherever a special class of men have been 
entrusted with the formulation and administration of law, 
they tend to make it a mystery; they tend to become more 
and more subtle and refined in their discriminations, until 
ultimately they have got out of the field where they can be 
followed up by plain, honest people's minds, and some power 
must be exerted to bring them back. The constitution of 1846 
exerted that power to bring the practice of the law out of 
the discredit into which it had fallen because of the intricacy 
and the complication and the technicality and the subtlety 
of the old common-law practice. Mr. Field brought it back 
with the code, of three hundred and odd sections, which 
bears his name, and the reform in procedure went all over the 
country. Curiously enough, just about the time that Eng- 
land followed the example and adopted the reformed pro- 
cedure in her Judicature Act of 1873, we began to take a back 
track and Mr. Throop's attempt to condense in a volume 
which was called The Code of Civil Procedure a great number 
of particular and minute provisions regarding practice 
was the first great step in that direction, in the backward 
direction. 

Now, in the forty years which have elapsed, we have been 
following in that same pathway until the people of our state 
have come to regard the simplification of practice as one of 
the great issues of the day. I beheve there is no duty which 
is demanded from this convention more generally than the 
duty to do something to make our practice more simple, 
speedy, inexpensive, and effective. Why is it } A careful 
study of it reveals the cause, or the principal cause. I have 



SCANDAL OF THE LAW'S DELAYS 179 

listened to discussions and have taken part in them in the 
Bar Association of my own city, in the State Bar Association, 
in the American Bar Association, in countless conversations 
with lawyers and with laymen, and I say the cause of the 
prevailing discontent with om* practice is to be found in the 
fact that year by year during all this period of forty years, 
there has been a continual addition, step by step, statute by 
statute, to the multitude of definite, certain, precise rules of 
procedure, binding upon the men that seek redress of wrongs 
in the courts. One of our most honored and beloved judges 
in the Court of Appeals said to me the other day, when I 
asked him how he thought this plan would work, " I have had 
since I came here to buy fifteen editions of the Code because 
it is so continually changed that after every session of the 
legislature my last edition is useless," and he gave this plan 
his warm approval. 

The trouble is not in a particular provision. These provi- 
sions that are put in are put in with good intent. The men 
who propose them in the legislature are honest men who 
beheve that they are useful, but they are not the result of any 
general view of the subject. They are the result of particular 
views of the needs of particular cases; and a provision that a 
member of the assembly or the senate may well honestly 
beheve to be useful upon his experience in a particular case, 
may work very badly, interfering with the obtaining of jus- 
tice in many other different cases. And when you come to 
put them all together, you have a great variety of statutory 
rights. Each one of these is a statutory right. I heard the 
other day a lawyer in New York boast that he could postpone 
any litigation for seven years, and I asked a lot of friends as I 
came along whether that was true, and they all said they did 
not doubt it. How ? Why, by compelling the honest fellow 
that comes into court to redress a wrong or to secure a right, 
to Htigate one after the other these statutory rights that have 



180 GOVERNMENT AND CITIZENSHIP 

been created by the legislature. Courts cannot ignore them 
because they are rights given by law. The courts must 
observe the law, and so the plain man who wants to get a 
wrong redressed has, bristling between his demand for 
redress and his judgment a dozen Htigations that he has to 
fight out before he can get to the end of his cause. 

My friends of the bar, we have been making our system of 
procedure here conform to the subtle, acute, highly-trained 
ideas of lawyers. That is not the true basis. The system of 
procedure, of course, cannot be simple, but as far as possible, 
it ought to be made to conform to the plain man's intelli- 
gence and experience. It ought to be so that the farmer and 
the merchant and the laborer can understand it, and know 
why he is delayed in getting his rights; can understand that 
the processes to which he is subject have a reason and know 
what the reason is, otherwise you cannot have that respect 
for the law, that confidence in its justice necessary for the 
maintenance of a system of just administration. And 
furthermore the existence of this great variety of minute, 
detailed statutory provisions has been breeding up a great 
number of code lawyers, and by that I mean lawyers whose 
principal concern is with the statutory code of rights and not 
with getting justice for their chents. 

Now, we ought to get back, get back to the fundamental 
idea of our profession which is the administration of justice. 
These minute, particular code provisions substitute rules, 
multitudes of rules for the justice of the particular case. I 
agree with Mr. Brackett. I am old enough at the bar to 
have the men who were my partners, my juniors, my clerks, 
sitting on the bench, and I look at them from a different 
angle from that which I can recall forty or fifty years ago 
when I looked up to those men high up above — they are 
men Hke the rest of us. But, my friends, they are honest and 
just. They want to do justice if they can be permitted to. 



SCANDAL OF THE LAW'S DELAYS 181 

They will do justice if they are permitted to. This network 
of meticulous rules that are made by our legislature with 
honest purpose prevent them from doing justice in the partic- 
ular case; and the people of our state and of our country 
understand this. They may not understand the details. 
They may not know why, but they feel that the pathway of 
justice is obstructed. They feel that the honest man would 
better lose his claim than go into court and spend his time 
and money in the law's pursuit which seems to have no end. 
And they are indignant over it and restless and dissatisfied 
over it, and they look to us to do something. Now, what is 
it ? What can we do ? I can assure you that I have done the 
best I could for years to try to find some formula, some 
method by which the thing that the constitutional conven- 
tion of 1846 did could be done again, for by a different route 
we have come into the same condition with which they dealt 
and after most earnest thought, particularly as the result of 
the discussions in all these bar associations, I have not found 
anything that offered so much light as the proposal of our 
judiciary committee. 

It is not simple, but show us something better. We must 
do something. We cannot go home and say to our friends 
and neighbors we have given you no relief in this matter 
that concerns you so deeply. 

Show us something better than that. WTiat is it ? In the 
first place it requires the legislature to act upon this report 
of the commission on statutory consolidation. It does not 
say how they shall act. We don't undertake to interfere 
with them in that. • 

In the second place, it requires them to pass some sort of a 
brief civil practice act and adopt some sort of rules of proce- 
dure; it requires these two divisions. That is following what 
our neighboring state of Connecticut has adopted. They 
have a practice act that you can fold up and put in your side 



182 GOVERNMENT AND CITIZENSHIP 

pocket. When the legislature in its wisdom has done that, 
then two results are provided, one is that the legislature shall 
stop the eternal tinkering with the practice, stop passing 
laws which are brought in here by individual members upon 
a narrow view of the occasion for them; shall stop every 
year pouring out a stream of amendments, and making new 
rules to cure the evils of old rules, and shall confine its action 
to periodical action upon the report of a commission. I 
agree with the idea that the legislature itself has not the 
time to elaborate and work out a system. It has too many 
other things to do. Accordingly the practice has become 
quite universal of having commissions appointed which 
shall prepare and present to the legislature well-considered 
measures. The legislature is given the fullest power; that 
is, it retains the fullest power to act upon reforms. It does 
not have to follow the recommendation of the commission. 
When the commission has reported, the legislature can 
throw their recommendation out the window if it sees fit; 
but the action of the legislature is concentrated on the point 
where it has the report before it, so that it will act upon the 
subject and not upon the ideas of A today and B tomorrow 
and C the day after, upon particular rules but it will act upon 
a system of practice as a whole, upon the report of a com- 
mission of its own selection, and it will act once for all until 
another period has elapsed, and so you stop this meticulous 
interference with practice, and you have an opportunity to 
test the provisions which the legislature adopts from time 
to time on the reports of its commissions. In the meantime 
the courts are authorized to proceed with their immemorial 
function of amending and adjusting the rules subject to the 
practice act of the legislature so that they will contribute to 
the doing of justice in the individual case and discourage 
these technicalities and subtleties which tangle justice in the 
net of form. 



SCANDAL OF THE LAW'S DELAYS 183 

Now, there is nothing that cannot be criticised; nothing 
that cannot be doubted. Of course the judges when they 
come to make their rules may make rules that Mr. Wicker- 
sham would approve and Mr. Brackett would disapprove, 
or it may be just the other way. But if the judges make 
rules or amendments to the rules that do not on the whole 
seem to be right, at the next period, when the legislature 
takes the subject up, it will put into its practice act a provi- 
sion that will control the bad rule. This provision reported 
by the committee is highly meritorious in that it compels the 
legislature to act in the broad way upon procedure as a 
whole, and at the same time it enables the legislature to con- 
trol and correct any tendencies by the court to go wrong in 
either direction. I have seen and heard of no proposal to 
accomplish the thing that we clearly must accomplish which 
seems to be so effective as that proposed by the committee. 



COURTS OF JUSTICE FOR SMALL CAUSES 

ADDRESS OF AUGUST 23. 1915 

The convention having under consideration section 8 of the proposed con- 
stitution, relating to the judiciary, and a discussion having arisen as to the terri- 
torial jurisdiction and powers of the City Court of the City of New York, Mr. 
Root said: 

I AM not familiar with the situation to which this particular 
provision applies. 1 would like to make an observation 
upon the general subject to which this provision belongs. 

It requires continual watchfulness to preserve the courts 
of small jurisdiction for the trial of the causes of the poor, of 
men of moderate means, of small business. Their causes are 
more important to them than the great causes which receive 
the attention of the press and enlist the services of leaders of 
the bar in the great courts. Every time, however, that you 
create a court for the trial of small causes the court imme- 
diately sets to work to get its jurisdiction enlarged. It never 
fails. I speak upon the careful attention growing out of the 
consideration of this same subject in the judiciary committee 
of the convention twenty-one years ago. Every court 
created for the trial of small causes tries to get its jurisdiction 
enlarged, and when the jurisdiction is enlarged the judges 
give their attention to the larger causes and neglect the small 
causes. They would rather be concerned in great affairs 
than in small affairs; and so, yielding in a good-natured way 
to the importunities of those gentlemen who wish to enlarge 
their oflBces, we gradually destroy court after court intended 
for the trial of small causes. 

I think it was a mistake to increase the jurisdiction of this 
court from $2,000 to $5,000. I think it would be another mis- 
take to give it full equity jurisdiction. You have got a 



186 GOVERNMENT AND CITIZENSHIP 

court that will deal with the affairs that are small in amount. 
Keep it; and let it render the service it was created for, 
instead of allowing it to transform itself into a duplicate 
Supreme Court. Or, if you do not do that, then you must 
create another court for the smaU causes and enlarge that, 
and create more courts, in unending succession. I think the 
whole tendency should be resisted. 



THE REGULATION OF PUBLIC UTILITIES 

AND THE DECLINE OF THE " BLACK 

HORSE CAVALRY" 

ADDRESS, AUGUST 25, 1915 

In a brief article on legislative corruption, the method of corruption particu- 
larly referred to by Mr. Root in the address printed below is thus defined : 

" Strike " bills, or " regulators " which are introduced by legislators attack 
some interest for the purpose of being bought off. Behind them is frequently 
to be found a " combine " of members, usually bi-partisan, organized for pur- 
poses of plunder. A combine of this nature in New York earned for itself the 
expressive title of the " Black Horse Cavalry." This body was particularly 
active in state legislation at the time when Boss Tweed was a state senator and 
practically in control of the legislature. (Cyclopedia of American Government, 
vol. i, p. 478.) 

I SYMPATHIZE very fully with the most of what both 
Mr. Wickersham and Mr. Wagner have said. I do not 
think that we are in a position to legislate in detail about 
the Public Service Commissions, and that we ought to leave 
that to the legislature which created them. 

There is a committee of the state senate, I understand, 
that is considering that subject. 

Mr. Wagner. Yes, there is. 

Mr. Root. They know a great deal more about it than I 
do, and I do not doubt that they know a great deal more 
about it than most of the members of the convention. The 
method of exercising the jurisdiction of these commissions 
is still in the stage of development. But I do not think we 
should lose the opportunity to put into the constitution 
enough to make it impossible for any legislature ever to 
abandon the system of regulating public service corporations 
through a commission, or commissions, whose business it is 
to deal with the subject, and to go back to the old method 

187 



188 GOVERNMENT AND CITIZENSHIP 

of leaving public service corporations unregulated, except 
by the passage of laws in the legislature. 

The public service commissions, both in this state and in 
other states and in the nation, were created to meet and deal 
with very great and real evils. In this state before we had 
that system, if a man was unjustly treated by a railroad, he 
had no recourse, except a lawsuit that was beyond his means, 
or a complaint to his representative in the legislature. A 
lawsuit by a single individual of moderate means against one 
of these great corporations was hopeless. The complaint 
to his representative in the legislature would result in the 
introduction of a bill founded upon, perhaps, just complaint, 
and those bills accumulated. A great deal of the time of the 
legislature was taken up by them. 

The duty of holding these corporations accountable was a 
burden upon the legislature which it ought not to have been 
called upon to perform. But, worse than that, this multitude 
of bills, founded upon just complaint, brought after them a 
multitude of strike bills introduced for the purpose of holding 
up the corporations, holding them up and calling them down. 

Many of us can now remember the dreadful days of the 
"Black Horse Cavalry" which came as an incident mainly, 
to the performance of this duty by the legislature. Fiu-ther 
still, the fact that the great transportation companies were 
being attacked, the great public service corporations were 
being attacked in the legislature, justified them in their own 
minds in going into politics and electing, or furnishing the 
money to elect, members of the senate and assembly. Good 
men, good citizens, honest, law-abiding men justified them- 
selves in the directorates of these railroads and other public 
service corporations in spending the money of the corporation 
to elect senators and assemblymen who would protect them 
against strike bills. The whole system became a scandal and 
a disgrace, and it was to remedy that here in New York and 



REGULATION OF PUBLIC UTILITIES 189 

all over the country that this system of regulation by a 
commission created by law was established. 

The results have been most beneficent. No greater reform 
has been wrought in the public life of our country than has 
been wrought by the transfer of this attempt to regulate 
these great corporations from the legislative bodies of the 
country to public service commissions. Now if a poor fellow 
is injured by a railroad company, he has somebody to go to, 
and the company can be held accountable. Now there is no 
cloud of strike bills in the legislature. Now there is no justi- 
fication for the New York Central or the Erie or the Delaware 
and Hudson or the electric light companies or the telegraph 
or telephone companies to go into politics and spend their 
money with the idea that they must protect themselves in 
the legislature. 

We can regard with greater respect the government of our 
state than we could. We never should permit a return to the 
old and vicious system. We should not now lose the oppor- 
tunity to make the return impossible, because men forget. 
The generation that knew the old, evil days of the " Black 
Horse Cavalry " is passing away, and when it is gone a new 
generation which knows not the cause for the creation of this 
system will arise; and, ignorant of the evils to which they 
would be returning by destroying it, they may wipe it out. 
So I hope that we, who know the reason for the creation of 
this system of regulation by commission will put into this 
constitution enough, just enough, to make it impossible for 
any legislature ever to destroy it and return to the old, evil 
days, leaving the real legislation for the further development 
of the system to the legislature. 



INVISIBLE GOVERNMENT 

SPEECH ON THE SHORT BALLOT AMENDMENT, AUGUST 30. 1915 

In the states of the American Union, most of the public oflBcers are elected by 
popular vote. As candidates for the elective positions are nominated by the dif- 
ferent parties, and as the names of all the candidates are printed on one and the 
same ballot, the ordinary voter finds himself in the presence of many names, among 
which he must select if he wishes the election of a particular person instead of the 
election of the party ticket. The idea of the so-called short ballot is to restrict the 
number of officers to be elected by the people at any one election, in order that the 
voters may concentrate their attention upon a few candidates and thus select those 
believed to be best qualified for the positions; to allow the oflBcers thus elected to 
appoint other public ofiBcers, and to hold the elected officers responsible not only for 
their own conduct, but for the selection and conduct of their appointees. It is 
believed by the advocates of the short ballot that by this method some of the evils 
of what has come to be called " Invisible Government " will be eliminated. 

In behalf of the short ballot, and of honest, open government, Mr. Root delivered 
the following address : 

I HAVE had great doubt whether or not I should impose 
any remarks on this bill upon the convention, especially 
after my friend, Mr. Quigg, has so ingeniously made it diffi- 
cult for me to speak; but I have been so long deeply inter- 
ested in the subject of the bill, and I shall have so few 
opportunities hereafter, perhaps never another, that I can- 
not refrain from testifying to my faith in the principles 
of government which underlie the measure, and putting 
upon this record, for whatever it may be worth, the con- 
clusions which I have reached upon the teachings of long 
experience in many positions, through many years of par- 
ticipation in the public affairs of this state and in observation 
of them. 

I wish, in the first place, to say something suggested by 
the question of my friend, Mr. Brackett, as to where this 
short ballot idea came from. It came up out of the dark, 
he says. 

191 



192 GOVERNMENT AND CITIZENSHIP 

Let us see. In 1910, Governor Hughes, in his annual 
message, said this to the legislature of the state: "There 
should be a reduction in the number of elective offices. The 
ends of democracy will be better attained to the extent that 
the attention of the voters may be focussed upon compara- 
tively few offices, the incumbents of which can be strictly 
accountable for administration. This will tend to promote 
efficiency in public office by increasing the effectiveness of 
the voter and by diminishing the opportunities of political 
manipulators who take advantage of the multiplicity of 
elective offices to perfect their schemes at the public expense. 
I am in favor of as few elective offices as may be consistent 
with proper accountability to the people, and a short ballot. 
It would be an improvement, I believe, in state administra- 
tion if the executive responsibility was centered in the 
governor, who should appoint a cabinet of administrative 
heads accountable to him and charged with the duties now 
imposed upon elected state officers." 

Following that message from Governor Hughes, to whom 
the people of this state look with respect and honor, a resolu- 
tion for the amendment to the constitution was introduced 
in the Assembly of 1910. That resolution provided for the 
appointment of all state officers, except the governor and 
the Ueutenant-governor. 

There was a hot contest upon the floor. Speaker Wads- 
worth, came down from the speaker's chair to advocate the 
measiu*e, and Jesse Phillips, sitting before me, voted for it. 
Ajid so, in the practical affairs of this state, the movement out 
of which this bill came had its start upon the floor of the 
state legislature. 

Hughes and Wadsworth, one drawing from his experience 
as governor and the other upon his observation of pubKc 
affairs, from the desk of the speaker of the assembly, were 
its sponsors. 



INVISIBLE GOVERNMENT 193 

Time passed, and in 1912 the movement had gained such 
headway among the people of the state that the Republican 
convention of that year declared its adherence to the prin- 
ciple of the short ballot, and the Progressive convention, in 
framing its platform, under which two hundred thousand — 
it is safe, is it not, to say two hundred thousand — of the 
Republican voters of this state followed Roosevelt as their 
leader, rather than Taft; the Progressive convention, in 
framing its platform, declared: " We favor the short ballot 
principle and appropriate constitutional amendments." 

So two parties, and all branches of the Republican party 
at least, committed themselves to the position that Hughes 
and Wadsworth took, in the Assembly of 1910. 

In 1913, after the great defeat of 1912, when the Republi- 
cans of the state were seeking to bring back to their support 
the multitudes that had gone off with the Progressive move- 
ment; when they were seeking to offer a program of con- 
structive forward movement in which the Republican party 
should be the leader. Republicans met in a great mass meet- 
ing in the city of New York, on the fifth of December of that 
year, 1913. 

Nine hundred and seventy Republicans were there from 
all parts of the state. It was a crisis in the affairs of the 
Republican party. The party must commend itself to the 
people of the state, or it was gone. Twenty-eight members 
of this convention were there, and in that meeting, free to 
all, open to full discussion, after amendments had been 
offered, discussed and voted upon, this resolution was 
adopted : 

Whereas, This practice [referring to the long ballot] is also in violation 
of the best principles of organization which require that the governor, who 
under the constitution is the responsible chief executive should be so in 
fact, and that he should have the power to select his oflScial agents; 

Therefore, be it Resolved, that we favor the application to the state 
government of the principle of the short ballot, which is that only those 



194 GOVERNMENT AND CITIZENSHIP 

offices shoiild be elective which are important enough to attract (and 
deserve) public examination. 

And be it further Resolved, that, in compliance with this principle, we 
urge the representatives of the Republican party of this state, in the 
senate and assembly, to support a resolution providing for the submission 
to the people of an amendment to the constitution, under which amend- 
ment it will be the duty of the governor to appoint the secretary of state, 
the state treasurer, the comptroller, the attorney-general, and the state 
engineer and surveyor, leaving only the governor and Ueutenant-governor 
as elective state executive officers. 

That resolution, I say, after full discussion was unani- 
mously adopted by the nine hundred and seventy repre- 
sentative Republicans who had met there to present to the 
people of the state a constructive program for the party. 
Mr. Frederick C. Tanner is chairman of this Committee on 
Governor and Other State Officers today, because it was he 
who offered the resolution in that meeting that was unani- 
mously approved by those nine hundred and seventy Repub- 
hcans. He is executing a mandate. He is carrying out a 
policy. He is fulfilling a pledge to the people. 

The time went on and the following winter, in the Assembly 
of 1914, a new resolution was introduced following the terms 
of this resolution of the mass meeting, following the terms of 
the Hughes- Wads worth resolution of 1910, providing that 
all these state officers except the governor and lieutenant- 
governor should be appointed. That resolution passed the 
assembly and every Repubhcan in the assembly voted for 
it. It never came to a vote in the senate. Voting for that 
resolution were four members of the assembly, who now sit 
in this convention: Mr. Bockes, Mr. Eisner, Mr. Hinman, 
and Mr. Mathewson. 

Time passed on and in the autumn of 1914 a Repubhcan 
convention met at Saratoga; an unofficial convention, we 
are told. Unofficial ? Neghgible! Here is the law under 
which it was called. Section 45 of the election law: 



INVISIBLE GOVERNMENT 195 

Nothing contained in this chapter shall prevent a party from holding 
party conventions to be constituted in such manner and to have such powers 
in relation to formulating party platforms and policies and the transaction 
of business relating to party affairs as the rules and regulations of the party 
may provide, not inconsistent with the provisions of this chapter. 

That convention was thus called more specifically and 
solemnly to frame a platform than any other convention 
that ever met in this state, for that was its sole business. 
That is what it was there for; to define, to declare, to set 
before the people the faith and policies of the Republican 
party; and in that convention there was a report from the 
Committee on Rules, which embodied deliberation, full dis- 
cussion and mature judgment, such as no report that ever 
came to a political convention within my experience ever had. 
The great mass meeting of December 5, 1913, had directed 
the appointment of a Committee of Thirty to meet and 
consider and prepare for submission to the convention a 
statement of the views of the Republican party regarding 
the new constitution. That committee was appointed; it 
met two or three days before the convention in the city of 
Saratoga. It met in the office of my friend, Mr. Brackett, 
and there day after day it discussed the subject, reached and 
voted upon its conclusions and framed a report. 

Let me say here, that Senator Brackett never agreed with 
the committee. He has been consistent and honest and 
open in the declaration of his views from first to last, but he 
was voted down in the Committee of Thirty, Their report 
favoring a short ballot, among other things, was presented 
to the convention. That report was referred to the Com- 
mittee on Resolutions of the convention, a committee of 
forty-two members, among them twelve members of this 
convention, and that Committee on Resolutions took up 
the report of the Committee of Thirty and discussed it all 
day and they voted upon it, and again Mr. Brackett's view 



196 GOVERNMENT AND CITIZENSHIP 

was voted down; and the Committee on Resolutions reported 
to the convention the plank in favor of the short ballot that 
has been read to you. 

Mr. Brackett. Will the Senator permit an interruption ? 
I know you have not intentionally made a misstatement, but 
you will recall that a report of the Committee of Thirty was 
not presented to the Committee on Platform until an hour 
before the convention, in the little room at the end of the 
piazza — before the convention met. 

Mr. Root. It is a fact, and that room was the scene 
of excited and hot controversy for a long period over the 
adoption of that report, which was in part adopted and 
in part rejected. 

Mr. Brackett. If you will pardon a suggestion, you 
said for a long period. It was, I think, about an hour and 
a half. 

Mr. Deyo. Will the gentleman give way ? I think that 
lasted until the following day. 

Mr. Root. It did. 

When it came to the convention, there was no doubt 
about the subject we were talking on. The temporary chair- 
man of the convention had said to the convention, " The 
reflections which arise from considering the relations of the 
executive and the legislature lead inevitably to another 
field of reform in state government. That is, the adoption 
of the short ballot. That is demanded both for the 
efficiency of our electoral system, and for the efficiency 
of government after election." And then, after stating the 
first, he proceeded : " The most obvious step toward simplify- 
ing the ballot in this state is to have the heads of executive 
departments appointed by the governor, etc. Still more 
important would be the effect of such a change upon the 
efficiency of government. The most important thing in con- 
stituting government is to unite responsibihty with power. 



INVISIBLE GOVERNMENT 197 

so that a certain known person may be definitely responsible 
for doing what ought to be done; to be rewarded if he does 
it and punished if he does not do it, and that the person held 
responsible shall have the power to do the thing. Under 
our system we have divided executive power among many 
separately elected heads of departments, and we have thus 
obscured responsibility, because in the complicated affairs 
of our government it is hard for the best informed to know 
who is to be blamed, or who is to be praised, who ought to 
be rewarded or who punished. At the same time that the 
governor is empowered to appoint the heads of executive 
departments and made responsible for their conduct, there 
plainly ought to be a general reorganization of the executive 
branch of our government." 

After that, Mr. Chairman, came the report of the Com- 
mittee on Resolutions, and Mr.Brackett submitted a minority 
report, taking substantially the position which he has taken 
here. That minority report was read, and it was argued 
at length. Amendments were offered and discussed. Mr. 
Brackett, I repeat, was heard at length upon it, in what 
he then called the " great council of the party ", and he was 
beaten; beaten fighting manfully for his opinions, but he 
was beaten. The Republican party went to the people at 
the coming election upon the declaration that it was in 
favor of applying the principle of the short ballot to the 
selection of executive oflScers. 

Let me turn to the other side of the story. When the 
resolution for the short ballot, simon-pure, making all 
the state officers but the governor and lieutenant-governor 
appointive, was before the Assembly of 1914, Mr. A. E. 
Smith, the member of this convention whose attractive 
personality has so impressed itself upon every member, 
moved an amendment to limit the change to appointment 
of the secretary of state, state engineer and surveyor and 



198 GOVERNIMENT AND CITIZENSHIP 

state treasurer, leaving the comptroller and attorney- 
general elective. Upon that amendment the Democrats of 
the assembly stood, voting with him. When the Democratic 
convention met in that autumn they put themselves on Mr. 
Smith's platform, approved his action and that of the Demo- 
crats in the assembly and declared in favor of exactly what 
he called for in his amendment — the election of the comp- 
troller and the attorney-general and the appointment of all 
the other officers. 

So you have this movement, not coming up out of the 
dark, but begun by a great Governor and advocated by a 
great Speaker, both of whom have received the approval of 
their country, one by being elevated to the bench of the 
Supreme Court of the United States and the other to the 
Senate of the United States. You have the movement pro- 
gressing step by step until it has received the almost universal 
assent, the final and decisive action of the party to which 
that Governor and that Speaker belong, repeated over and 
over and over again, fully thought out and discussed; and 
you have the other party accepting the principle, agreeing 
to the application of it, with the exception of the comptroller 
and the attorney-general. 

Now, we must vote according to our consciences. We 
are not bound — no legislative body is bound legally by a 
platform. But, Mr. Chairman, if there is faith in parties, if 
there is ever to be a party platform put out again, to which 
a man can subscribe or for which he can vote without a sense 
of futility, without a sense of being engaged in a confidence 
game; if all the declarations of principle by political parties 
are not to be regarded as false pretense, as humbug, as a 
parcel of lies, we must stand by the principles upon which we 
were all elected to this convention. There is one thing, and, 
in so far as I know, only one thing, that the vast majority of 
us have assured the people who elected us we would do in 



INVISIBLE GOVERNMENT 199 

this convention, and that is that we would stand by the 
position of Hughes and Wadsworth. I, for one, am going 
to do it. If I form a correct judgment of the self-respecting 
men of this convention, it will be with a great company that 
I do it. 

But, Mr. Chairman, do not let us rest on that. Why was it 
that these conventions, one after another, four of them, 
declared to the people that they were for the principle of 
this bill ? In the first place, our knowledge of human nature 
shows us that the thousands of experienced men in these 
conventions and meetings had come to the conclusion that 
that principle met with the opinion of the people of the 
state. It is all very well for Mr. Quigg to tell us what the 
men he met in Columbia county said, for Mr. Green to write 
letters to his friends in Binghamton, but nine hundred and 
seventy men in that mass meeting on the fifth of December 
told you what their observation was, that they would com- 
mend their party to the people of this state by declaring this 
principle. A thousand and odd men in the Republican con- 
ventions of 1912, 1913, and 1914 have given proof conclusive 
of what their observation of public opinion was. A thousand 
and odd men in the Democratic convention of 1914 have 
given proof conclusive of what their observation of public 
opinion was. Conventions do not put planks in platforms to 
drive away votes. 

Again I ask, why was it that they thought that these 
principles would commend their tickets to the people of the 
state ? Why was it that the people of the state had given 
evidence to these thousands of experienced men in the 
politics of the state that those principles would be popular ? 
Well, of course, you cannot escape the conclusion that it 
was because the people of the state found something wrong 
about the government of the state. My friend, Mr. Brackett, 
sees nothing wrong about it. He has been for fifteen years 



200 GOVERNMENT AND CITIZENSHIP 

in the Senate; I suppose he could have stayed there as long 
as he wanted to. He is honored and respected and has his 
own way in Saratoga county. Why should he see anything 
wrong ? My friend, Mr, Green, is comfortably settled in the 
Excise Department, and he sees nothing wrong. Mr. Chair- 
man, there never was a reform in administration in this world 
which did not have to make its way against the strong feel- 
ing of good, honest men, concerned in existing methods of 
administration, and who saw nothing wrong. Never! It is 
no impeachment to a man's honesty, his integrity, that he 
thinks the methods that he is familiar with and in which he is 
engaged are all right. But you cannot make any improve- 
ment in this world without overriding the satisfaction that 
men have in the things as they are, and of which they 
are a contented and successful part. I say that the growth, 
extension, general acceptance of this principle shows that all 
these experienced politicians and citizens in all these con- 
ventions felt that the people of the state saw something 
wrong in our state government, and we are here charged 
with a duty, not of closing our eyes, but of opening them, 
and seeing, if we can, what it was that was wrong. 

Anybody can see that all these one hundred and fifty- 
two outlying agencies, big and little, lying around loose, 
accountable to nobody, spending all the money they can get, 
violate every principle of economy, of efficiency, of the 
proper transaction of business. Every one can see that all 
around us are political organizations carrying on the business 
of government, that have learned their lesson from the great 
business organizations which have been so phenomenally 
successful in recent years. 

The governments of our cities: why, twenty years ago, 
when James Bryce wrote his American Commonwealth, the 
government of American cities was a byword and a shame 
for Americans all over the world. Heaven be thanked, the 



INVISIBLE GOVERNMENT 201 

government of our cities has now gone far toward redeeming 
itself and us from that disgrace, and the government of 
American cities today is in the main far superior to the 
government of American states. I challenge contradiction 
to that statement. How has it been reached ? How have 
our cities been lifted up from the low grade of incompetency 
and corruption on which they stood when the American 
Commonwealth was written ? It has been done by applying 
the principles of this bill to city government, by giving 
power to the men elected by the people to do the things for 
which they were elected. But I say it is quite plain that 
that is not all. It is not all. 
/ I am going to discuss a subject now that goes back to the 
beginning of the political life of the oldest man in this con- 
vention, and one to which we cannot close our eyes, if we 
keep the obligations of our oath. We talk about the govern- 
ment of the constitution. We have spent many days in 
discussing the powers of this and that and the other officer. 
What is the government of this state .'' What has it been 
during the forty years of my acquaintance with it ? The 
government of the constitution ? Oh, no; not half the time, 
nor half way. When I ask what do the people find wrong in 
our state government, my mind goes back to those periodic 
fits of public rage in which the people rouse up and tear down 
the political leader, first of one party and then of the other 
party. It goes back to the public feeling of resentment 
against the control of party organizations, of both parties 
and of all parties. 

Now, I treat this subject in my own mind not as a per- 
sonal question to any man. I am talking about the system. 
From the days of Fenton, and Conkling, and Arthur, and 
Cornell, and Piatt, from the days of David B. Hill, down to 
the present time, the government of the state has presented 
two different lines of activity, one of the constitutional and 



202 GOVERNMENT AND CITIZENSHIP 

statutory officers of the state, and the other of the party 
leaders, — they call them party bosses. They call the 
system — I do not coin the phrase, I adopt it because it 
carries its own meaning — the system they call " invisible 
government." For I do not remember how many years, Mr. 
ConMing was the supreme ruler in this state; the governor 
did not count, the legislatures did not count; comptrollers 
and secretaries of state and what not, did not count. It was 
what Mr. Conkling said; and in a great outburst of public 
rage he was pulled down. 

Then Mr. Piatt ruled the state; for nigh upon twenty 
years he ruled it. It was not the governor; it was not the 
legislature; it was not any elected officers; it was Mr. Piatt. 
And the capitol was not here; it was at 49 Broadway; with 
Mr. Piatt and his lieutenants. It makes no difiFerence what 
name you give, whether you call it Fenton or Conkling or 
Cornell or Arthur or Piatt, or by the names of men now 
living. The ruler of the state during the greater part of the 
forty years of my acquaintance with the state government 
has not been any man authorized by the constitution or by 
the law; and, sir, there is throughout the length and breadth 
of this state a deep and suUen and long-continued resent- 
ment at being governed thus by men not of the people's 
choosing. The party leader is elected by no one, account- 
able to no one, bound by no oath of office, removable by no 
one. Ah! My friends here have talked about this bill's 
creating an autocracy. The word points with admirable 
facility the very opposite reason for the bill. It is to destroy 
autocracy and restore power so far as may be to the men 
elected by the people, accountable to the people, removable 
by the people. I don't criticise the men of the invisible 
government. How can 1? I have known them all, and 
among them have been some of my dearest friends. I can 
never forget the deep sense of indignation I felt in the abuse 



INVISIBLE GOVERNMENT 203 

that was heaped upon Chester A. Arthur, whom I honored 
and loved, when he was attacked because he held the posi- 
tion of political leader. But it is all wrong; it is all wrong 
that a government not authorized by the people should be 
continued superior to the government that is authorized by 
the people. 

How is it accomplished ? How is it done ? Mr. Chair- 
man, it is done by the use of patronage, and the patronage 
that my friends on the other side of this question have been 
arguing and pleading for in this convention, is the power to 
continue that invisible government against that authorized 
by the people. Everywhere, sir, that these two systems of 
government co-exist, there is a conflict day by day, and year 
by year, between two principles of appointment to office, 
two radically opposed principles. The elected officer or the 
appointed officer, the lawful officer who is to be held respon- 
sible for the administration of his office, desires to get men 
into the different positions of his office who will do their 
work in a way that is creditable to him and his administra- 
tion. Whether it be a president appointing a judge, or a 
governor appointing a superintendent of public works, 
whatever it may be, the officer wants to make a success, and 
he wants to get the man selected upon the ground of his 
ability to do the work. 

How is it about the boss ? What does the boss have to 
do ? He has to urge the appointment of a man whose 
appointment will consolidate his power and preserve the 
organization. The invisible government proceeds to build 
up and maintain its power by a reversal of the fundamental 
principle of good government, which is that men should be 
selected to perform the duties of the office; and to substitute 
the idea that men should be appointed to office for the preser- 
vation and enhancement of power of the political leader. 
The one, the true one, looks upon appointment to office with 



204 GOVERNMENT AND CITIZENSHIP 

a view to the service that can be given to the public. The 
other, the false one, looks upon appointment to office with a 
view to what can be gotten out of it. 

Gentlemen of the convention, I appeal to your knowledge 
of facts. Every one of you knows that what I say about the 
use of patronage under the system of invisible government 
is true. Louis Marshall told us the other day about the 
appointment of wardens in the Adirondacks, hotel keepers 
and people living there, to render no service whatever. They 
were appointed not for the service that they were to render 
to the state; they were appointed for the service they were 
to render to promote the power of a political organization. 
Mr. Chairman, we all know that the halls of this capitol 
swarm with men during the session of the legislature on 
pay day. A great number, seldom here, rendering no ser- 
vice, are put on the payrolls as a matter of patronage, not 
of service, but of party patronage. Both parties are alike; 
all parties are alike. The system extends through all. Ah, 
Mr. Chairman, that system finds its opportunity in the 
division of powers, in a six-headed executive, in which, by 
the natural workings of human nature, there shall be opposi- 
tion and discord and the playing of one force against the 
other; and so, when we refuse to make one governor elected 
by the people the real chief executive, we make inevitable 
the setting up of a chief executive not selected by the people, 
not acting for the people's interest, but for the selfish interest 
of the few who control the party, whichever party it may be. 

Think for a moment of what this patronage system means. 
How many of you are there who would be wilhng to do to 
your private cKent, or customer, or any private trust, or to a 
friend or neighbor, what you see being done to the state of 
New York every year of your lives in the taking of money 
out of her treasury without service ? We can, when we are 
in a private station, pass on without much attention to 



INVISIBLE GOVERNMENT 205 

inveterate abuses. We can say to ourselves, I know it is 
wrong, I wish it could be set right; it cannot be set right, 
I will do nothing. But here, here, we face the duty, we can- 
not escape it, we are bound to do our work, face to face, in 
clear recognition of the truth, unpalatable, deplorable as it 
may be, and the truth is that what the unerring instinct of 
the democracy of our state has seen in this government is, 
that a different standard of morality is applied to the con- 
duct of affairs of state than that which is applied in private 
affairs. I have been told forty times since this convention 
met that you cannot change it. We can try, can we not ? I 
deny that we cannot change it. I repel that cynical assump- 
tion which is born of the lethargy that comes from poisoned 
air during all these years. I assert that this perversion of 
democracy, this robbing democracy of its virility, can be 
changed as truly as the system under which Walpole gov- 
erned the commons of England, by bribery, as truly as the 
atmosphere which made the Credit Mobilier scandal possible 
in the Congress of the United States, has been blown away 
by the force of public opinion. We cannot change it in a 
moment, but we can do our share. We can take this one 
step toward, not robbing the people of their part in govern- 
ment, but toward robbing an irresponsible autocracy of its 
indefensible and unjust and undemocratic control of govern- 
ment, and restoring it to the people to be exercised by the 
men of their choice and their control. 

Mr. Chairman, this convention is a great event in the 
life of every man in this room. A body which sits but once 
in twenty years to deal with the fundamental law of the 
state, deals not only for the present but for the future, not 
only by its results but by its example. Opportunity knocks 
at the door of every man in this assemblage, an opportunity 
which will never come again to most of us. While millions 
of men are fighting and dying for their countries across the 



206 GOVERNMENT AND CITIZENSHIP 

ocean, while government is become serious, sober, almost 
alarming in its effect upon the happiness of the lives of all 
that are dearest to us, it is our inestimable privilege to do 
something here in moving our beloved state along the path- 
way towards better and purer government, a more pervasive 
morality and a more effective exercise of the powers of 
government which preserve the liberty of the people. When 
you go back to your homes and recall the record of the 
summer, you will find in it cause for your children and your 
children's children, who will review the convention of 1915 
as we have been reviewing the work of the preceding con- 
ventions, to say: my father, my grandfather, helped to do 
this work for our state. 

Mr. Chairman, there is a plain old house in the Oneida 
hills, overlooking the valley of the Mohawk, where truth 
and honor dwelt in my youth. When I go back, as I am 
about to go, to spend my declining years, I mean to go with 
the feeling that I have not failed to speak and to act here 
in accordance with the lessons I learned there from the God 
of my fathers. God grant that this opportunity for service 
to our country and our state may not be neglected by any 
of the men for whom I feel so deep a friendship in this 
convention. 



SPEECH ON CLOSING THE CONVENTION 

SEPTEMBER 10, 1915 

At the closing session of the convention of 1915, and after delivery of the address 
below, the following tribute to Mr. Root, as its presiding officer, was unanimously 
adopted : 

Resolved, That the thanks of this convention be tendered to the Honorable 
Elihu Root for the ability, fairness and courtesy which have distinguished his 
services as president of this convention. 

OUR work is done. The long, hard months during which 
we have been wrestling with questions of government, 
and character has been struggling with character in the dis- 
cussions of the proposed amendments to the constitution, 
are over. We have produced a revised constitution which 
is not a model of style, of form, of brevity, of theoretical 
perfection. Any one of us with the models which are avail- 
able, could have produced in the soUtude of his own office a 
more perfect and harmonious scheme of government; but 
this instrument is fitted by patience, experience, knowledge 
and effort, to the actual conditions of the life of a people 
which has been growing for three centuries, of a people living 
one half upon the sea and the other half in the river valleys 
and among the hills and on the shores of the Great Lakes, of 
a people of ten million with varied industries and interests 
and prepossessions and prejudices and sympathies; and to 
know the full meaning of all the provisions which this instru- 
ment contains one must have studied and know the life of 
the people of all the great state of New York. When we came 
to our work on the sixth of April last, we addressed ourselves 
first to studying the conditions of the government of the state. 
We found that there were serious evils which had resulted 
in an enormous increase of expenses from twelve million 

207 



208 GOVERNMENT AND CITIZENSHIP 

dollars at the time of the last convention to forty-two mil- 
lion dollars at the time of our meeting; an enormous increase 
of indebtedness and an apparent impossibility of meeting 
all attempts to curtail expenses or to prevent the further 
accumulation of debt. Upon further inquiry we found that 
the executive and administrative organization of the state 
was loose, confused, ill-regulated; that one hundred and fifty 
and more separate agencies were going about the business of 
government, responsible to no one in particular, each one 
spending all the money that it could get, and there was no 
such concentration of responsibihty and power as was neces- 
sary to bring to accountabiHty the agencies of the state 
which were plunging our people into extravagance and debt. 
We found that the legislature of the state had declined in 
pubKc esteem and that the majority of members of the 
legislature were occupying themselves chiefly in the pro- 
motion of private and local bills, of special interests, with 
which they came to Albany, private and local interests upon 
which apparently their reelections to their positions depen- 
ded, and which made them cowards, and demoralized the 
whole body. We found that the course of justice was slow 
and expensive and hindered by technicahties and subtleties 
which kept honest men out of their rights. We found that 
the great offices, the hundreds of offices of the state were 
swarming with men who held sinecures, who were put in 
their places for the benefit of particular organizations and 
not for the services that they were to render to the state. 
We have done our best to devise and adopt measures which 
will remedy these evils. When one's automobile acts 
strangely and goes wrong, one does not berate it or pass 
resolutions about it; one endeavors to put one's finger on the 
fault in the machinery and correct the fault. The capacity 
of a people for seK-government is measured by their ability 
to create and maintain institutions that will govern. With- 



CLOSING THE CONVENTION 209 

out the institutions of government there can be no govern- 
ment, for the vote alone accomplishes nothing, but in the 
creation of an active agent. We were elected by the people 
of the state to overhaul the machinery of government, to 
ascertain if we could where in that complicated mechanism 
lay the fault that caused the evils under which they suffered. 
We have done the best we could. We have given our best 
brain, our best strength, our best devotion to the accom- 
plishment of that duty and now we submit our work to the 
people of the state, and we ask of them only this: As we 
have been your loyal and devoted servants, doing your 
behest to the best of our ability, be loyal to us and give at 
least a presumption in favor of the work that we have done. 
If you find it wrong, reject it; but do not reject it upon 
light or unconsidered reasons, for it is the best that your 
representatives, elected by you, devoting themselves for all 
this long summer to the work, can do to cure the evils of 
your government. 

There are two special things which I wish to say before 
the close of this convention. One is — and I would like to 
say it to every citizen of the state — one is that this con- 
vention has risen above the plane of partisan politics. It has 
refused to make itseK or permit itself to be made the agency 
of party advantage except as faithful service for the state is 
a benefit to party. It has refused to engage in the play of 
politics. No caucus and no conference has marred the impar- 
tiality of our proceeding. No resolution has bound the 
judgment or conscience of any member of this convention. 
Our conception of our duty was to leave behind strife of 
party, and upon the higher plane of patriotism and love of 
country, to join all together, whatever our parties, in doing 
the best we could for the prosperity of our beloved state. 
One effect of this course of conduct on our part has been 
that the debates of this convention compare most favorably 



210 GOVERNMENT AND CITIZENSHIP 

with the debates of any parHamentary body which has sat 
in dehberation during the lifetime of any man in this room. 
I have seen and heard the debates of many parhamentary 
bodies and never have I heard or read debates in which the 
matter was more relevant, the discussion more earnest and 
to the point, the attempts at display less conspicuous, the 
speeches for home consumption more infrequent, and real 
discussion, that real open, public discussion of a deliberative 
body, which is the essential process of free self-govern- 
ment, on a higher level than in this convention of the year 
1915. 

And another result of this course of conduct has been that 
the thirty-three measures adopted by the convention have 
been adopted by these astonishing votes: Twelve of the 
measures were adopted unanimously; twelve were adopted 
by majorities of more than ten to one; of the remaining nine, 
two were adopted by majorities of more than seven to one, 
two by majorities of more than four to one, two by majori- 
ties of more than three to one, and three by majorities of 
more than two to one. That, in an assemblage composed of 
two different and perennially conflicting parties was the 
result of common patriotic contributions by the members of 
both parties towards the perfection of measures in a con- 
vention which was doing its work with a sense of the dignity 
of the people it represented, and not for party advantage. 

All the great measures of this convention were adopted 
not only by the votes, the affirmative votes of a majority of 
the Republicans but by the affirmative votes of a majority 
of the Democrats in the convention. The executive re- 
organization plan, commonly called the short ballot, was 
adopted by the votes of ninety-seven Republicans in the 
affirmative and fifteen in the negative, and of twenty-eight 
Democrats in the affirmative and fifteen in the negative. 
The budget, that great new departure in the finance of the 



CLOSING THE CONVENTION 211 

state, was adopted by the affirmative vote of one hundred 
and one Republicans to two Republicans in the negative and 
of thirty-six Democrats in the affirmative to two in the 
negative. The city home rule bill was adopted by one 
hundred and two Republicans voting in the affirmative and 
two in the negative; by eighteen Democrats voting in the 
affirmative and fifteen in the negative. The county home 
rule bill, which completes the scheme, was adopted by 
ninety-one Republicans voting in the affirmative and nine 
in the negative; and thirty-seven Democrats voting in the 
affirmative and two in the negative. 

The judiciary bill, that great measure which prescribes 
the reform in judicial procedure that in the best judgment 
of this convention will give the honest man the chance for 
his rights, was adopted by the affirmative vote of one hun- 
dred and three Republicans to one Republican in the nega- 
tive and thirty-two Democrats to two Democrats in the 
negative. So that in substance, upon the great measures of 
this convention both parties of the state are united, both have 
given their suffrages in favor of the reforms that we propose. 

One other thing I wish to say, and that is that similar 
evils to those we have found in our state government have 
been found in the governments of many other states. People 
of those states have had recourse to an abandonment or a 
partial abandonment of representative government. They 
have had recourse to the initiative and referendum and the 
recall, the recall of officers and the recall of decisions. In 
this convention we have offered the most irrefutable, con- 
crete argument against those nostrums and patent medicines 
in government and in favor of the preservation of that 
representative government which is the chief gift of our 
race to freedom, by undertaking to reform representative 
government, instead of abandoning it and to make it worthy 
of its great function for the preservation of liberty. 



212 GOVERNMENT AND CITIZENSHIP 

This constitution is not a matter of little prejudices or 
oppositions. It is not a business to be decided accordingly 
as one is opposed to raising this salary or that, or to extending 
the workmen's compensation or restricting it, or to making a 
httle change in this office or that. It is to be decided upon 
great Hues for it is a great work. It is a great departure in 
government. It is the best that the men selected by the 
people of the Empire State, to do the work for them, can do 
towards rescuing the representative government of our 
fathers from the obloquy which has come upon it in recent 
years. These great measures of the reorganization of the 
executive, of the new method of state finances, of the relief 
of the legislature from those petty preoccupations of local 
and private bills, which have been destroying its morale, of 
the establishment of the privileges and blessings of local 
self-government for the cities and for the counties of the 
state, of reform in judicial procedure, all these are great 
measures which should appeal to a great people who are 
competent to maintain the perpetuity of representative self- 
government. And upon those great lines I feel assured you 
may be confident the people's verdict will be cast. 

Now, gentlemen of the convention, I bid you farewell 
with assurance of respect and esteem and affection. We 
have labored long together in a common cause, and I am 
sure we shall all carry to oiu* homes the inestimable reward 
of faithful service in the possession of a host of brothers, 
children of our common country, devoted to the same cause, 
and loving each other as brother Americans. So I declare 
the constitutional convention of the state of New York of the 
year 1915 to be adjourned without day. 



A STUDY OF THE PROPOSED 
CONSTITUTION 

ADDRESS AT A DINNER OF THE REPUBLICAN CLUB OF 
NEW YORK, OCTOBER 18, 1915 

After the adjournment of the constitutional convention of 1915 on September 9, 
Mr. Root delivered a series of carefully prepared addresses before representative 
bodies, advocating the adoption of the constitution of the state as amended. Of 
this series, two have been selected for publication; the first delivered before the 
Republican Club of New York, October 18, 1915; the second a week later, before 
the Economic Club of New York. 

I NEED not tell you, I cannot tell you, how deeply I am 
affected by this warmth of greeting and this assurance of 
the endurance of old friendship. It is just about twenty 
years since you did me the honor to make me the president 
of this club, immediately following the constitutional con- 
vention of 1894. And now, after twenty years of life, with 
its struggles, with its expense of energy, with all the writing 
of life into the history of our state and our country, we have 
come again to the close of another constitutional conven- 
tion, and you are greeting me once again with the warmth 
and loyalty of friendship that forbids any man to say that 
the people of a republic are ungrateful, or that the generous 
emotions and the loyal sentiments of true friendship are not 
a mighty power, transcending the materialism and the self- 
ishness in the race for advantage and for property and for 
fame in this Republic. We have met many times, my friends, 
following the standard of some admired and beloved leader; 
often we have fought together to carry the standard of the 
party to victory, often we have gathered resolution in defeat 
to advance again for victory in the next election. The 
interests of personality, of living issues that immediately and 
directly affect our own fortunes, and the welfare of our 



214 GOVERNMENT AND CITIZENSHIP 

communities, have been with us plain, and clear, and vivid 
when we have met before. We have sought to make our friend 
our leader, governor or president; but now we have a cold, 
dry, uninteresting question: A constitution of the state, 
prolix and comphcated, with matters of dull governmental 
machinery affected, little or nothing to cause excitement, 
little or nothing to awaken public interest; yet, my friends, 
the issue, the cold, dry, uninteresting issue that is before us 
now transcends the interest and the importance of any suc- 
cess of any man in any election for which we have striven. 
We have passed in America that happy period of youth in 
which we could make mistakes without suffering for them. 
We have passed that condition of simple governmental 
affairs when any one could do anything under any system, 
and the vast complication and difficulty of our government 
is pressing home upon the welfare and the happiness and the 
liberty of our people. The test of capacity for self-govern- 
ment is to be found in the people's abihty to create institu- 
tions which will at once preserve liberty and maintain order. 
For five months and something more, a body of men, 
elected by the people of the state of New York, two-thirds 
of them Repubhcans,. some of them elected in the state at 
large, holding their places by over one hundred thousand 
majority, have been applying themselves and laboring to 
reach just conclusions of the utmost importance upon the 
government of the state. They have produced a constitution 
as the result of listening to many witnesses, of securing much 
advice, of long and thorough study, of complete and full 
discussion, of reconcihation of views, of subordination of the 
less important to the more important; and this has resulted 
in a revised constitution of the state. It is not a thing 
of shreds and patches, it is not a thing to be considered 
according to the individual predilections of this man or that 
upon this particular subject or the other; it is a whole, a 



THE PROPOSED CONSTITUTION 215 

complete rounded whole, and, as a whole, the determination 
of the people of the state upon it is the most grave and 
serious determination which the people of the state have had 
to meet in many a decade. 

Let me, if I can within the brief limits possible to such an 
occasion, try to state what it is. When the constitutional 
convention delegates, whom you elected, addressed them- 
selves to considering the government of the state, they found 
that there were serious defects in aU three branches of our 
government. 

Our judicial procedure was complicated, technical and fuU 
of subtleties, and with a multitude of statutory provisions 
relating to procedure, which made it difficult for a plain and 
honest man to come into court and get his rights. The pro- 
cedure had been built up by year after year of separate and 
specific code provisions and code amendments, which, taken 
all together, have created a multitude of statutory rights in 
the way of procedure that make it almost impossible for a 
litigation to be brought to a prompt and inexpensive con- 
clusion. 

We found that the executive branch of our government 
was ill-compacted, confused, extravagant, subject to no 
effective control; over one hundred and fifty agencies, great 
and small, all over the state, were carrying on business, and 
were responsible, practically, to no one. Every one spent 
all the money he could get, every one acted in accordance 
with his own judgment. Good men, honest men, trying to 
do their duty, but none of them held to responsibility or 
subject to the effective control and limitations of inspection 
and supervision. 

We found that the legislature had declined in public 
esteem; we found that the members of the legislature, a 
very large proportion of them, were going to Albany with 
local and private bills, and special interests which they 



216 GOVERNMENT AND CITIZENSHIP 

wished to subserve, and that every man who had a special 
bill and a special interest was made a coward and pre- 
vented from doing his duty toward the general interests of 
the state. 

We found that the continually increasing tendency of the 
legislature to exercise its powers for the playing of politics, 
was making our government the means of securing personal 
advantage, personal appointments to office, personal appro- 
priations out of the treasury of the state; and we sought, 
with all sincerity and earnestness within our power, to find 
remedies for those evils in the three great departments of the 
state. 

We sought to deal with one by requiring the legislature 
again, as the constitutional convention of 1846 did, to 
return to simpHcity and effectiveness of procedure in the 
attainment of justice. We undertook to require the legis- 
lature to pass a brief and simple practice act, and sweep 
away all this great body of statutory rights in procedure and 
leave the regulation of the rules under the general provisions 
of the practice act to the courts, so that our judges on the 
bench would be permitted to do justice in the particular case, 
instead of making men run the gauntlet of these acute and 
subtle and technical barriers to the attainment of their 
rights, which have been a disgrace to the administration of 
justice in this state. 

In the executive department, we sought to apply the rule 
of responsibihty, and to give men who are elected by the 
people the power which would make it possible to hold them 
responsible. We undertook to condense all those one hun- 
dred and fifty-two agencies of the state into seventeen 
departments; we undertook to require that the overlapping 
and the interference, and the useless expenditure of money 
should be done away with, by putting all those agencies into 
a limited number of departments, under one head that would 



THE PROPOSED CONSTITUTION 217 

be responsible and that could be held responsible by the 
governor of the state who himself can be held responsible 
by the people of the state because they will have given him 
power upon which they can hold him responsible. 

And we undertook to rehabilitate the legislature of the 
state, not by any one provision — that was impossible — 
but by a series of provisions, and that is the central idea of 
the whole constitutional scheme included in this revision. 
In the first place, we found the legislature making up the 
appropriation bills, making them up in the dark, with sug- 
gestions for appropriations coming to the committees in 
private, in secret, coming from every one, responsible or 
irresponsible, coming from the members of the legislature 
themselves, each one wanting something, each one trying to 
get something for his constituency, appropriation bills 
brought out late in the session, running along on the calendar 
until the close of the session, and then, under an emergency 
passage, not printed, not discussed, not understood, passed 
by the legislature, then the legislature adjourning and the 
governor left with thirty days in which to sit down in the 
privacy of his office, with a blue pencil, and control the action 
of the legislature. That system was a complete reversal of 
the true and traditional system of representative government, 
under which the representatives of the people are to hold the 
purse strings. The governor was made to hold the purse 
strings, and the representatives of the people, instead of con- 
trolling expenditure, ran pell-mell to increase it. We have 
reversed it. We have taken this procedure, which stood on 
its head, turned it around and stood it on its feet and we 
have required, first, the heads of all those departments, the 
seventeen of them, who are now to be responsible, in the 
place of the one hundred and fifty-two, we have required 
them to furnish the governor in ample time a statement of 
the needs of their departments, to arrange them in the order 



218 GOVERN^IENT AND CITIZENSHIP 

of their importance, to be responsible for that statement, and 
then we have required the governor to revise these statements 
and cut them down, or hold himself responsible for the amomits. 
And we have required the governor, early in the session, to 
lay the statements of the needs of the executive departments 
of the whole state government before the legislature side by 
side with a statement of the resources of the state from which 
the appropriations are to be paid. And we have put the 
legislature in a position where, instead of making up a 
statement of appropriations in the dark, they are bound to 
deal with the governor's statement of appropriations in 
public, not to increase them, but to cut them down if they 
will, or refuse them if they will. And we have given them 
the right to have the governor and the heads of departments 
come before them that they may be interrogated as to why 
they want the money, what they want it for, why they have 
to have so much. 

And so we have restored the legislature of the state to 
the legislative function of a representative assemblage in 
holding the purse strings. 

People talk about its increasing the power of the gov- 
ernor. It increases the responsibility of the governor and it 
increases the power and restores the true function of the 
legislature. 

More than that, the great weakness of our legislature is 
in these private interests that particular members of the 
legislature go to Albany to subserve; the local bills, which 
make cowards of them all; and we have drawn a ring around 
them, and we have deprived the legislature, we have relieved 
the legislature of their temptations. 

By the home rule provision we have put the initiative as 
to special and local bills affecting the cities of the state in 
the local legislatures and so the members of our legislature 
will no longer go to Albany each with his special bill that 



THE PROPOSED CONSTITUTION 219 

he has to get through as a condition of being continued in 
oflSce in that body. All special local legislation is swept 
away. We have done the same things as to the counties, by 
a provision that the legislature shall pass no bills relating to 
counties except upon the initiative of the counties, the county 
authorities; two things of which we have relieved the legis- 
lature. We have also relieved it of the multitude of code 
amendments which come up, each individual coming up with 
an amendment that he wants for some particular litigation 
in his own region. We have relieved it from that tempta- 
tion to turn aside from its proper duties by requiring this 
brief and simple practice act and leaving the rest to the 
rules of court, and prohibiting the legislature from amend- 
ing the code except at intervals of not less than five years, 
upon the report of a commission appointed by themselves. 
We have relieved the legislature of the great multitude of 
bills for game laws, local to the last degree, making the game 
laws in every county different from every other county, 
by providing for a body of nine conservative commission- 
ers, following the plan of the university of the state, with 
the regents, who, since 1784, have controlled om* educa- 
tion. These are four other ways in which we have relieved 
the legislature. 

We have cut off by positive prohibition all that class of 
bills authorizing the proving of claims against the state, bills 
by which it is commonly sought to evade the prohibition 
against legislative auditing of claims. That is another. We 
have cut off the flood of local improvement bills by pro- 
hibiting the passing of any bill for the use of the state's 
money in building a culvert in your district, or a bridge in 
yoiu*s, or an embankment in yours, unless there is filed a plan 
and an estimate of the cost and a certificate by the super- 
intendent of public works as to whether the interests of the 
state at large require the improvement to be made. 



220 GOVERNMENT AND CITIZENSHIP 

And now when the members of the legislatm"e come to 
Albany, they will have practically nothing to do but to 
attend to the public business, to deal with general laws of 
the state, to stand against extravagant expenditure in the 
appropriation bills. We have cut off the right of emergency 
messages, which had made the old provision of the consti- 
tution of 1894 prohibiting a bill from being passed until it 
had been for three days in print in its final form, of no avail, 
because there would come in an emergency message declar- 
ing that the public interests required the immediate passage 
of the bill. 

We have cut off these messages so that now no biU can be 
passed at all until it has been in print, on the desks of the 
members of both houses, for three full days in its final form. 

So we have taken away the temptation to rush things 
through in the rather discreditable hurly-burly of the 
closing days of the session — things that nobody knew 
anything about and that would not stand having anybody 
know anything about them. 

And then we have required that the debates of the legis- 
lature shall be printed from day to day just as the debates 
in Congress are, and the debates in the British House of 
Commons are, and the debates in the French Chamber are; 
so that in the first place, the people of the state will know 
what the men at Albany are doing, and why they are doing 
it, and so that the legislature of our state will be an oppor- 
tunity for an able young man to help himself along in a 
career. Who knows now, — who knows now why things are 
done at Albany ? Here and there, a newspaper prints some- 
thing that is said, but the necessities of news service require 
the striking and the spectacular to be reported, and the duU 
and uninteresting, real debates, are never known; and as a 
result, the art of debate has gradually been declining in 
Albany. Now a young man, if this constitution is adopted. 



THE PROPOSED CONSTITUTION 221 

can go to Albany, and if he has anything in him, he can get 
credit for it, and service in the legislature will be a stepping- 
stone to preferment in a public career. 

And we have taken away the temptation to trade in 
offices, the temptation to bind the governor of the state 
to all sorts of bargains by doing away with the requirement 
that all of his appointments be confirmed by the state 
senate. We have taken away the temptation to pass "ripper'* 
bills by putting into the constitution a fixed statement as 
to the heads of the great departments of the state, so that 
they cannot be made the football of selfish politics, but must 
remain the great agencies of true and patriotic politics. We 
have made it possible for the legislature of our state to retrieve 
the good name of the state legislatures of our country; we 
have made it possible for the executive of our state to make 
true the declaration so long standing in our constitution that 
the executive power is vested in the governor, and to per- 
form the duty so long required of the governor to take care 
that the laws are executed. 

We have made it possible that our courts, which wish 
to do justice, and will do justice if they are permitted, shall 
give an honest man his rights as against all shysters what- 
soever. 

And that is all one comprehensive scheme. You cannot 
submit it section by section; it is a complete inter-related, 
thought-out whole, for the redemption of the government of 
our state from the iU-repute into which it has fallen, for 
doing away with the selfish playing of politics in the place 
of government; for the reduction of the extravagance and 
lavishness and lack of responsibility that has brought our 
expenditures up from twelve millions at the time of the last 
convention, to forty-two millions a year at the time of this 
convention; that has brought our debt up from seven mil- 
lions to one hundred and eighty-six millions; that has made 



222 GOVERNMENT AND CITIZENSHIP 

our highways and our canals and public works generally the 
vehicles for graft and robbery of the public. 

Now, we may be wrong about some things, but, we are not 
wrong about the need. No one will challenge the need for 
an improvement in the government of our state. These men 
who worked all the five months of the spring and summer, 
may not have found the true solution; but it is an extra- 
ordinary circumstance that after long study and discussion 
and full and open debate, they came, after all the wide 
differences of opinion, to an amazing agreement. Twelve of 
the measures of the convention were adopted by unanimous 
vote. Twelve by a vote of more than ten to one, and the 
remaining nine by votes of more than seven to one, more 
than fom" to one, more than three to one, and but three 
measures by votes of only two to one. And I will undertake 
to say that the conclusions upon these grave and serious 
matters, the reform of the machinery of our state govern- 
ment, reached by these men, selected from among our 
people after their long study and discussion, with such 
unanimity, cannot be justly challenged upon five minutes' 
consideration. We may have been wrong, but the reasons 
thus far alleged for voting against the constitution, com- 
pared with the weight and seriousness of the matter which 
the constitution carries, and the great results which it seeks 
to accomplish, are trifling, unworthy of consideration, bear 
the marks of but little consideration, and seem rather to be 
a means of excusing an opposition which finds its real origin 
and cause in something besides the reasons suggested. 

Now, gentlemen, the convention had a majority of two- 
thirds of Republicans in round numbers, two-thirds Repub- 
licans, and one-third Democrats. The Republican majority 
of the convention, after much discussion and some feeling, 
reached the conclusion that it could serve its party best by 
serving its state best, and invited the cooperation, welcomed 



THE PROPOSED CONSTITUTION 223 

the assistance of the Democratic minority. We put into that 
constitution the aflSrmative constructive program adopted by 
the Republican party of the state by the mass meeting held in 
this city on December 5, 1913, at which nearly one thousand 
Republicans from all over the state were present. We put 
into it the constructive program which was approved by the 
Republican convention at Saratoga, in 1914. We put into it 
also the agreement of the Democratic party upon many of 
the great measures of constructive statesmanship for which 
the Republican party had declared, and upon all the great 
measures of the convention: upon the home rule measures; 
upon the judiciary article; upon the reorganization of the 
executive department, commonly spoken of as the short ballot 
bill; upon the budget reform. Upon all the five, the six, great 
measures which make the body of that revised constitution, 
there was a vote not only of a majority of the Republicans, 
but a majority of the Democrats of the convention. Now, 
how can Republicans fail to vote for it ? It is their work. It 
is their program. It is giving effect to their declarations. 
How can Democrats fail to vote for it ? For their best, their 
best whom they sent to the convention assented to it; agreed 
to it; put their thought and effort into it. So many of the 
eminent, respected, honored Democrats of the state are for 
it; but I regret to say that there are some men who are so 
unwilling to see the constitution adopted which was the work 
of a convention having a Republican majority, that they are 
seeking to do what the constitutional convention refused to 
do; they are seeking to play politics with the constitution. 
We thought it was our duty to rise above partisan play of 
politics and to serve our state; to show that our party 
sought to gain only by serving the state, and so it was with 
the great majority of the Democrats in the convention; but 
these men, these men are seeking to defeat this constitution, 
in order that they may reverse the judgment of 1914 which 



224 GOVERNMENT AND CITIZENSHIP 

put Republicans in control of the convention, hoping that 
they may have another convention in 1917 or 1918, that they 
will control. 

Great as is the issue of the constitution, almost as great 
is the question whether the people of the state of New York 
can be controlled by that low and unpatriotic view of public 
duty. If they succeed, who will write the constitution in 
1918 ? What will be in it ? All these schemes of reform 
of our government will have been discredited. Not these 
things; oh, no, the people would have voted against them. 
What will be in it ? Dare you think of it ? Mr. Gompers 
is against the constitution. He was defeated in 1914. If 
he succeeds, and there is another convention, and he is 
elected, he will perhaps write the constitution. I can 
name a lot of others who think that they will write the 
constitution if they can defeat this one; but it will have 
none of this plan of reform, for that will have been 
defeated by the people. . . . 

I am told that the great danger to this constitution lies 
in the possibility that men may not vote upon it at all. Of 
course it is very difficult to vote upon a complicated matter 
which took the convention five months to work out, upon 
such consideration as can be given to it by the ordinary 
business man, by the farmer or the storekeeper, or, indeed, 
by any one whose time is occupied in his own affairs. But if 
we are ever to have a reform of our state which conforms to 
the necessities of economy and efficiency and the preserva- 
tion of liberty and order, if we are to keep pace with the 
learning of our time, as to the methods of transacting busi- 
ness, if we are to make the affairs of government as well 
administered as the affairs of the great business corporations, 
the people of the state must take interest enough in such a 
question as this, either to study it and form their own 
opinions upon it, or to give the benefit of the presumption 



THE PROPOSED CONSTITUTION 225 

to the men whom they elected to work out the problems and 
to find remedies. And I invoke from you, my friends, 
earnest and sincere eflfort to bring to the people of our city 
and our state an appreciation of the importance of the 
subject which is before them, and the importance of their 
acting upon it, and acting upon it wisely. The Republican 
Club never had a duty more serious and more clear; and if 
you will perform that duty in the spirit of your past, you 
will add new lustre to your history and gain new credit as 
patriots and make me, at least, your long-time friend and 
loyal associate, more proud than ever of being a member of 
the Republican Club of the City of New York. 



THE NEW YORK CONSTITUTION AND 
REPRESENTATIVE GOVERNMENT 

ADDRESS BEFORE THE ECONOMIC CLUB OF NEW YORK 
OCTOBER 25. 1915 

At its thirty-third meeting at the Hotel Astor, on October 25, Mr. Root was the 
guest of honor of the Economic Club of New York. Mr. William E. Wilcox, 
the chairman of the meeting, in introducing Mr. Root as the presiding officer of the 
recent convention to revise the constitution of the state of New York, said : 

We are glad indeed to welcome here the distinguished gentleman who has 
rendered such lasting service to the country in the important offices he 
has held. To no man in our generation is the country under a greater debt of 
gratitude for the unselfish devotion he has shown to the state and to the 
nation, than to our distinguished guest. 

WHEN the constitutional convention, the result of 
whose labor is before you for your action as electors 
of the state of New York, assembled in Albany in April last, 
they found themselves holding a warrant of but weak poten- 
tiality, as comparatively few of the people of the state had 
voted for a convention. A very small majority of those who 
voted had cast their votes in the aflSrmative. Yet there was 
a duty imposed upon the members of the convention; and 
upon a survey of the field it seemed to them that there was 
something to be done; not merely the amendment here and 
there of specific provisions of the constitution of the state; not 
mending and patching in detail the provisions relating to the 
different departments of the state government, but of wide 
and serious importance. 

We all knew, and the members of the convention felt, 
that throughout the American Union there was dissatis- 
faction with the workings of state government. In a large 
part of the states of the Union that dissatisfaction had found 
expression in a partial abandonment of the system of repre- 
sentative government. In a great many of the states the 

227 



228 GOVERNMENT AND CITIZENSHIP 

people had turned from the attempt to establish by their 
votes from year to year satisfactory state govermnents, 
which through the workings of their legislative, executive, 
and judicial branches, should do the popular wiU, maintain 
order, secure justice, and preserve liberty, and had sought 
to substitute other methods of attaining their purposes: the 
initiative, the compulsory referendum, the more sudden and 
instant control over administrative and other judicial officers 
through the recall, — direct legislation as distinguished from 
representative legislation. Some of us who felt that repre- 
sentative government was the greatest gift of our race to the 
development of freedom, some of us who had been standing 
for years in opposition to the abandonment of representative 
government, felt that in that convention the duty pressing 
upon us was to show, if we could, that instead of abandoning 
representative government because of its defects and the evils 
which accompanied its exercise, we should seek to cure the 
evils by improving representative government, and bringing 
it back to the exercise of its full power and the performance of 
its great function; and the ejffort to give to the people of the 
state of New York an improvement of representative govern- 
ment which should be an answer to all those who were 
preaching the abandonment of representative government, 
is the keynote of the work of the convention; is the reason 
and the rationale of the constitution which is before you 
now for action. 

Of course, if legislation is to be direct, if the laws of the 
state or nation are to be made at the polls upon the initiative 
of any group of men who have ideas that they wish to pro- 
pose, the dignity and the power of representative assembhes 
must decline. Of course, if that system of government is to 
prevail, the American system of government through repre- 
sentative assembhes must grow weaker and weaker; and if 
that system is not to prevail, representative assemblies must 



REPRESENTATIVE GOVERNMENT 229 

be made to do their work, to meet the well executed purpose 
and the will of the people whom they represent. It is that 
feature of the work of the convention which should, I think, 
appeal to this Economic Club; for you deal not merely with 
details, but with the philosophy of government, and with the 
broad, underlying principles which are to be applied. And 
I put to you, as the first great ground upon which the work 
of this convention is to be favorably regarded, that it is an 
eflFort, sincere and serious on the part of the one hundred and 
sixty-eight men elected by the people to do the work, to 
reinstate the representative government of our fathers in the 
position to which it is entitled, and to make it so good, so 
sound, so effective a government, that all demand for the 
abandoning of representative government and the substitu- 
tion of direct legislation will pass away, and be repudiated. 

Now, we found certain manifest defects in our govern- 
ment. They were not peculiar to the government of the 
state of New York. They are to be found throughout the 
Union, in the government of most, if not all, of the states. 
Although there was no great majority of the people calling 
for a constitution, the members of the convention deemed 
it their duty to deal with these defects. 

Let me try, in the brief time I have, to state in outline 
what they were. In the first place, we found that under 
our judicial system the course of justice had come to be 
obstructed; it is slow and expensive and uncertain. It takes 
years for an honest man going into court to assert a right, 
or redress a wrong, to reach his conclusion. He finds him- 
self obstructed, frustrated in the progress of his suit. If he 
reaches a favorable result, he finds himseK sent back on 
appeal, and he is obliged to begin over again. Whenever the 
administration of justice is entrusted to a class and guild, 
the tendency always is to make it a mystery, to have it 
become more refined, and subtle, and technical; and as you 



230 GOVERNMENT AND CITIZENSHIP 

understand the course of development of judicial procedure, 
you perceive that from time to time it has been necessary 
for the people, who want only simple justice, to step in and 
bring back the administration of their courts to their own 
simple basis. 

In 1846 the constitutional convention, tired of the tech- 
nicahty and subtlety of the common-law procedure, required 
that the procedm'e should be simplified, and from their 
requirement came the code of 1849, which, in a simple 
way, with three hundred and odd sections, introduced a 
simple procedure that went all over the country as the 
reform procedure, and which was followed in England — 
conservative old England — in 1873, by their Adjudicature 
Act. But now we have been going backwards in this state, 
and year by year the legislature, whose action was substi- 
tuted for the old common law, has been adding to the code 
of procedure, piling up amendment after amendment with 
specific and particular rules, until we have a code of over 
three thousand sections, and until every act in a court of 
justice is regulated by detailed and meticulous statutory 
provisions; so that when a plain man goes into court, he has 
to meet at the hands of an acute and ingenious adversary 
the necessity of litigating upon a great variety of rules which, 
because they are imposed by the legislature, constitute 
statutory rights. 

He may be right in his claim for justice, and he may be 
wrong in his practice. Each of these rules is good enough, 
but all taken together result in a man's finding himself 
tangled in the form, denied his rights, compelled to Htigate 
until his means are exhausted, so that it is hardly worth 
his while to go into court. And again, as was done in 1846, 
as was done in England in 1873, again we need to bring 
our judicial procedure back to the simple basis of a plain, 
honest citizen's intelligence. 



REPRESENTATIVE GOVERNMENT 231 

We have got our procedure regulated according to the 
trained, refined, subtle, ingenious intellect of the best prac- 
ticed lawyers, and it is all wrong. Our procedure ought to 
be based upon the common intelligence of the farmer, the 
merchant, and the laborer. And there is no reason why it 
should not be. I say it not without experience in legal 
procedure. There is no reason why a plain, honest man 
should not be permitted to go into court and tell his story 
and have the judge before whom he comes permitted to do 
justice in that particular case, unhampered by a great variety 
of statutory rules. And in this convention, acting upon the 
teaching of the great experience of its members, and follow- 
ing the philosophy of the history of the development of the 
law, we undertook by plain and adequate provisions to com- 
pel the restoration of our judicial procedure to that plain 
basis of honesty and opportunity. 

We found that there had been a vast increase of the expen- 
ditures of the state, as well as of the indebtedness of the 
state; expenditures which had increased from twelve million 
dollars a year for a number of years after the last conven- 
tion, to forty-two million dollars a year in the last year. 
Debts amounting from seven million dollars upwards to 
one hundred and eighty-six million dollars, amounting to a 
mortgage for the state and municipal debts, excluding the 
debt of New York City, of over thirty dollars an acre of 
the lands of the state, vastly outstripping the increasing 
population and vastly outstripping the increase in wealth. 
We found a general belief, clearly with some foundation, 
that much of the money raised by this enormous increase of 
debt, had been expended without due return to the people 
of the state. 

Successive administrations of the same party, — adminis- 
trations of different parties, — all had contributed their part 
toward this increase of debt; and we looked into the system 



232 GOVERNMENT AND CITIZENSHIP 

to see why it was — why it was impossible to stop the race of 
extravagance; and we found that the state government had 
been built up from simpler times by accretion. As a new 
thing seemed desirable, it was added by legislation. A new 
board, a new bureau, a new officer was created to do this, or 
that, or the other thing which seemed desirable, until there 
were one hundred and fifty-two different state boards, com- 
missions, and agencies, all of them engaged in the business of 
the state. All of them were practically without supervision, 
each one going its own way, and all of them were getting 
all the money they could to spend; not subject to inspection 
or supervision, or that limiting power which comes from the 
knowledge that what they do is going to be subject to super- 
vision and criticism; and it was perfectly plain that the 
business, the great business of this public corporation, was 
being carried on in a way that would bankrupt any private 
industry. No one of our great industrial institutions, our 
great transportation companies, could live for a year doing 
its business in the way that the business of the state is being 
done. No pubHc officer can afford to be without the feehng 
that his work is going to be inspected and criticised. No 
body, corporate or politic, any more than a body money- 
making and industrial, can afford to have its agents free, 
and with knowledge that they are not going to be inspected 
and supervised and held to accountability; and so it seemed 
perfectly plain to us that we must apply, in all the executive 
and administrative branches of the state government, the 
rule of adding power to responsibihty, and responsibihty to 
power; that we must have a government every agent of 
which was accountable to somebody above it, until you get 
up to the executive head of the state, who himself is account- 
able to the people at the polls. And we endeavored to bring 
that about by requiring the legislature to put all these one 
hundred and fifty loose-lying agencies into seventeen desig- 



REPRESENTATIVE GOVERNMENT 233 

nated departments, each agency to be accountable to the 
head of a department, and each head of a department, with 
the exception of two, to be accountable to the governor. 

And that is the Executive Reorganization bill of the con- 
vention, commonly spoken of as the Short Ballot bill, 
although the short ballot feature of the bill was but an 
incident to this great work of putting the executive and 
administrative business of the state upon a sound business 
basis of accountability and responsibility, and responsiveness 
to the public will, and power to execute the public will. 

And then, turning to the legislative branch, we found our 
legislature like the legislatures of most of the American 
states, in disrepute. Ah, is it not so, my friends ? Can 
any one of us be proud of the esteem in which the great 
legislative branch of our government is held in this state ? 
Ought we to submit to have a legislature which is com- 
mented upon, and weighed, and measured as our legislature 
is in the public press of the state ? Can representative 
government be a success unless that is stopped ? Is there 
not vital need, if our institutions are to continue, if our 
representative government is to live, that our legislature 
shall be raised above the low esteem in which the public 
holds it, and has held it for years past ? Well, the conven- 
tion tried to accomplish that by a series of provisions based 
upon an estimate of the causes for the low esteem in which the 
legislature was held, and in examining the causes. 

We found this to be the case: as government has become 
more complicated, the legislature has been overwhelmed with 
a vast mass of detail. Now, development of all business con- 
cerns, of all government, is that as afifairs grow complicated, 
more and more has to be delegated by the chief to subordi- 
nates. And the true method of development is that the 
chief shall delegate matters of minor importance to sub- 
ordinates, and himself retain and act upon the matters of 



234 GOVERNMENT AND CITIZENSHIP 

major importance. That is as true of legislation as it is of 
administration. But we found that in the legislature the 
matters of minor detail were retained, and the matters of 
major importance were receiving scant attention. 

The members of the legislature have been going to Albany, 
each one with his local bill, his private bill, his special bill for 
some interest in his district, upon the success of which has 
often depended his reelection; and the legislature is over- 
whelmed with a mass of detail, local legislation which ought 
never to be there at all, and the result of this has been that 
the legislature has not been adequately discharging its proper 
function. 

Now, we undertook to cure that, and the first thing that 
we undertook to do was to state the method of dealing with 
the finances of the state; the method of deaUng with the 
appropriations for the expenses of the state. We found that 
the legislature was making up the appropriation bills in com- 
mittee, practically in the dark, suggestions coming from all 
quarters for what was to go into them, each member of the 
legislature having something he wanted to get in; and the 
bills were reported, run along on the calendar, and ordinarily 
were rushed through in the closing days of the session, with 
aU of the turmoil and uncertainty and doubt as to what was 
in them, of the all-night sessions. 

After the legislature adjourned, the governor had thirty 
days in which to apply a blue pencil to the work of the legis- 
lature and control its action by vetoing the items of the 
appropriation bills; and so the legislature had abdicated its 
true function of holding the purse strings; that had been 
passed over to the governor, and so the legislature was com- 
posed of men all of whom were trying to get money out of the 
state treasury, instead of seeking to protect the state treasury. 

Now we undertook to set that right, and we turned the 
proceeding upside down. It had been standing on its head. 



REPRESENTATIVE GOVERNMENT 235 

and we put it on its feet. We require, in the first place, that 
the heads of these new departments shall furnish to the gover- 
nor in adequate time a statement of all the money required 
by their departments, and that the governor shall then take 
all these statements, put them together, revise them, prune 
them, and bring the amounts down to what he is willing to 
accept responsibility for; and that he is to lay that before the 
legislature early in its session, together with a statement of 
the revenues of the state, so that the legislature may have 
before it at the start a statement of the cloth from which the 
coat is to be cut, and of the pattern of the coat that is needed. 

I undertake to say that every man who tries to keep a 
cash account finds that it makes him economical. When 
you sit down and figure your revenue, and put down in 
another column your necessary expenses, and then see what 
you have for new things, for optional things, for things you 
would like, the necessity of condensing your expenditures to 
meet your revenues makes you economical; and for the first 
time in the history of our representative government, this 
constitution requires that process with the finances of the 
state. For the first time, under that provision, the legis- 
lature of the state of New York, having the demands of the 
executive put before it, and the statement of the revenues 
out of which those demands are to be met, will be performing 
its true, traditional function as a representative body, in 
holding the purse strings, and protecting the purses of the 
people. Now, you see, that cuts out all these vast assaults 
upon the treasury by individual members of the legislature, 
so that they are relieved from the temptation to attend to 
these local matters instead of attending to the greater 
interests of the state. 

Then we put in a provision prohibiting the passage of 
bills by the legislature for the expenditure of state money 
upon local improvements, the building of bridges, culverts, 



236 GOVERNMENT AND CITIZENSHIP 

embankments, dredges, roads, etc., in localities, prohibiting 
the spending of any money of the state treasury for these 
purposes, unless there was a plan, and an estimate, and 
a certificate from the superintendent of the pubhc works 
as to whether the interests of the state required that the 
work should be done at the expense of the state. So that 
now, if the constituents of an assemblyman want him, as a 
condition of their support, to get a bill for the building of a 
bridge over a creek in such or such a town in his district, he 
must refer them to the superintendent of public works. 
And then we reheved the legislature from other vast 
accumulations of private and local bills by proposing the 
home rule provision for cities, which gives to the cities of 
the state as large a measure of control over their own affairs 
as it is wise and reasonable to give them in one step. We 
vested in the local legislatures the exclusive power to pass 
laws for the regulation and control of the pro{>erty, local 
affairs, and government of their municipalities; and so the 
great flood of local city bills, which occupy the time of the 
members of the legislature, are cut off and put where they 
belong — in the municipahties themselves. 

By another provision, we accompKshed practically the 
same thing as Congress, by providing that the legislature 
shall pass no law relating to a county, except upon a request 
of the local authorities of the county. By this provision we 
have cut off from the legislature the great flood of code 
amendments coming up, most of them from local sources 
and proposed for local reasons, for particular litigations. 
Then we put in a provision prohibiting the passing of laws 
authorizing the audit of claims against the state, laws which 
always show favoritism; leaving claims against the state to 
the equal justice of general laws. 

And so we have reheved the legislature from the tempta- 
tion and preoccupation of these local biUs, and we have left 



REPRESENTATIVE GOVERNMENT 237 

them nothing to do but attend to the public business. Fur- 
ther than that, we have undertaken to dignify the legislature. 
We have undertaken to recognize and compel recognition of 
the true and high function of the legislative assembly of the 
state of New York. We have provided that when the appro- 
priation bills come before them with the demands of the 
executive department for the expenditure of the moneys of 
the state, they shall have at their hand the commissioner of 
accounts, the head of the department of accounts, who shall 
be required to make such examinations for them, and such 
reports to them, as they shall require, regarding the necessity 
of these expenditures. 

We have provided that they shall have a right to call 
before them the governor and the heads of departments, 
and inquire from them what they want the money for, why 
they want the money, and why they cannot do with less. 

We have cut off the emergency message under which the 
governor could call upon the legislature to pass bills before 
they are printed, so that no bill can now be passed by our 
legislature without having been in print in its final form on 
the desks of the members of both houses, for at least three 
days, and all of the unseemly acts of the concluding days of 
the sessions will be over. 

And then we have required that the debates of the legis- 
lature shall be printed and published from day to day, just as 
the debates in Congress are published, the debates of the 
British House of Commons, and the debates of the French 
Chamber, so that members of the legislature will be required 
to tell why they do things, and why they refuse to do things, 
and the people of the state will know why they are doing 
things and what they are doing. These printed debates will 
not be light reading; they will not have a great circulation 
on the news stands; but they will go into every newspaper 
office in the state, and they will be the basis for the judgment 



238 GOVERNMENT AND CITIZENSHIP 

of the press, and they will be the basis of the editorials that 
are written; and the young man entering the legislature 
who has the ability to debate the great questions before 
the legislature for determination, can make his mark; and the 
legislature instead of being the graveyard of careers, will be 
an opportunity for political preferment, where ability, and 
energy, and ambition will enable a man to rise in political 
life, to show what is in him, to make service in the senate 
or assembly a stepping-stone to higher public duties. 

There are many other things looking in the same direction, 
which I cannot stop to talk about. These matters are all 
interrelated; they are all parts of a single whole; they are 
all the expressions of a desire to bring back to government of 
the state, its true function; to raise it above the low esteem 
into which it has fallen; purge it of the habit of playing 
politics, and to make representative government again its 
own answer to its detractors, and its own defense against 
destruction. 

Now, we may have been all wrong in the convention. 
But we were not wrong about the need for something to be 
done. We were not wrong about the importance to the 
people of this state, and the people of our country, to have 
something done to make representative government more 
effective; and that we were not wrong I can point you to a 
thousand evidences all over this country of the interest that 
has been taken in the work of this convention. It seems 
quite clear to me that all through the West, through the 
Middle West, and the Mountain West and the Pacific Coast, 
there has been greater interest taken in this attempt in the 
state of New York to restore representative government to 
its true estate than has been taken in the state of New York 
itself! 

There is no mistaking the evidence of private corre- 
spondence and the pubHcations of the press all over the 



REPRESENTATIVE GOVERNMENT 239 

country. The people of these states seek and have been dis- 
cussing the initiative, and the compulsory referendum, and 
the recall of the administrative officers, and of judges and 
judicial decisions; they see that in the state of New York 
we are attempting a great new departure in representative 
government. 

We may have been wrong in the way we devised in the 
convention to accomplish this, but we were not wrong about 
the need of it; and as to whether we were wrong about the 
way, of course, is a question of machinery. I need not tell 
the members of an economic club of what vast importance 
the machinery of government is; how important is the ques- 
tion as to whether you have one metal or two for your , 
monetary standard; how important is the question as to 
whether you issue small notes or not; how important are 
the questions that are illustrated by the difference between 
our old National Bank Act and our new National Reserve 
Act; what vast consequences come under the workings of 
human nature engaged in business; the conflicting and for- 
ward movement of intelligent selfishness on the part of a 
vast multitude of people; how important are the conse- 
quences of all that, under apparently slight differences in 
machinery. Just so about government. These are matters 
of governmental machinery. To use a familiar illustration, 
it is like your automobile when it goes wrong. You do not 
undertake to cure it by the application of general principles, 
you do not philosophize about it, or make speeches to it or 
berate it, or hit it with a club. 

You ask somebody who is familiar with machinery, or is 
intelligent with machinery, to try to put his finger on the little 
thing that has gone wrong, and as he advances the spark 
plug, or something else, off it goes. 

For five months the men who were elected by the people of 
the state of New York to overhaul the machinery of govern- 



240 GOVERNMENT AND CITIZENSHIP 

ment and try to make it go right where it was going wrong, 
labored with the subject at Albany. They heard everybody 
who would come; they sent for people who were supposed to 
know; they heard testimony for weeks and months, and 
then they discussed it; and they compared their ideas and 
they adjusted their views. They reconciled their opinions 
and they brought out their results, and these results are the 
results which these one hundred and sixty-eight men, after 
five months' careful study of this machinery, believe wiU go 
far to cure the evils that exist in representative government. 

The question relative to this constitution is not whether 
some particular Httle thing pleases you or me. There is 
nobody who is wholly satisfied with the constitution. I am 
not. There are things in it I do not want there. There are 
things left out, I would like to have there. That was true 
for every member of the convention. But the great process 
of free self-government went on; the subordination of minor 
matters to major matters; the surrendering of individual 
opinion upon matters of little importance in order to secure 
agreement upon matters of great importance. That process 
by which our country is governed and by which free govern- 
ment must always be achieved, went on during those five 
months, and the result is a great attempt to accompKsh 
something of the first order of importance for our state and 
country in the form of representative government in a state. 

I confess that I thought when the result was reached, 
that the extraordinary unanimity of the convention upon 
these great measures, upon this great system composed of 
these measures, would commend itself to the people of the 
state. Let me read to you a memorandum which I took 
from the record, showing you after all the differences of 
opinion and the long discussion, how the members of all 
parties in that convention reached their conclusion. There 
were thirty-three amendments adopted out of over eight 



REPRESENTATIVE GOVERNMENT 241 

hundred. Over eight hundred amendments proposed, and 
thirty-three adopted; therefore, seven hundred and sixty- 
seven men against the constitution. These thirty-three 
were adopted, twelve of them by a unanimous vote; twelve 
of them by a vote of over ten to one, making twenty-four; 
of the remaining nine, two were adopted by a vote of over 
seven to one, two by a vote of over four to one, two by a 
vote of over three to one, and the remaining three by a vote 
of over two to one. And of these two are separately sub- 
mitted — they relate to taxation and apportionment — and 
the third was one of the minor matters of the convention; I 
think increase of salaries of legislators. There is another 
circumstance which emphasizes the extraordinary agreement 
which resulted from these long discussions. It is that all the 
great measures of the convention were adopted by a major- 
ity, not only of the Republicans, but of the Democrats of 
the convention. 

The Executive Reorganization bill, commonly spoken of 
as the Short Ballot, was adopted by a vote of Republican 
ninety-seven to fifteen. Democrat twenty-five to fifteen, 
total one hundred and twenty-five to thirty, a majority of 
over four to one. 

The budget — that great reform in the financial system 
of the state; that one bright hope to stop the unbridled 
waste of public money, which results from a vicious system — 
was adopted by a vote. Republican one hundred and one to 
two, Democrat thirty-six to two, a total of one hundred and 
thirty-seven to four, or more than thirty-four to one. 

The City Home Rule provision was adopted by a vote. 
Republican one hundred and two to two. Democrat eighteen 
to fifteen, a total of one hundred and twenty to seventeen, 
or a majority of over seven to one. And let me say that the 
adverse votes upon that were mainly not against what it 
did, but as a protest that it did not go farther. 



242 GOVERNMENT AND CITIZENSHIP 

The Comity Home Rule provision, Republican ninety-one 
to nine. Democrat thirty-seven to two, total one hundred 
and twenty-eight to eleven, or a majority of eleven to one. 

The Judiciary Article, with its provision for the reform 
of procedure, RepubHcan one hundred and three to one. 
Democrat thirty-two to two, total one hundred and thirty- 
five to three, or a majority of over forty-five to one. When 
you remember that these two parties. Republican and 
Democrat, came from long experience in perennial conflict; 
came from far distant regions in great variety of local condi- 
tions; these results of five months of earnest and sincere 
consideration; these results coming from the true process of 
self-government certainly do indicate a probabihty that the 
provisions adopted will be, in some measure at least, a cure 
for the evils against which they were devised. 

And it seems to me quite clear that no fight consideration, 
no casual glance, would justify any one, any patriotic citizen 
of the state who wants the evils redressed, in rejecting the 
conclusions which were reached by that body; I mean with 
that unanimity, and in that way. If, upon mature consider- 
ing, it seems to any man that the constitution is wrong, that 
the things that it seeks ought not to be done, or what it 
proposes in the way of remedy will be ineffective, or injurious; 
why, of course, he should vote against it. But, after check- 
ing these means to overhaul the machinery of government; 
and after doing it with this unanimity, I submit to you that 
no man ought to reject these conclusions, except upon full 
study and consideration himself, which leads him to a 
different conclusion. 

Of course there is opposition. I have been seeking, I have 
been wondering much, at the causes. No such series of pro- 
visions as this can be adopted without interfering with a 
great many people. A good many men will be turned out 
of oflfice. You cannot retrench without turning men out of 



REPRESENTATIVE GOVERNMENT 243 

office. You cannot economize without interfering with 
people; and if you will look to the opposition to this con- 
stitution, in nine cases out of ten you can trace it back 
to the unwillingness of men to be turned out of office; the 
fear of men that they will be turned out of office, or 
the fear of men that their personal perquisites or opportu- 
nities will be interfered with. 

There is one thing which I feel bound to say: The con- 
stitutional convention of 1915 rose above the plane of 
partisan politics. It rejected, not without struggle, not 
without a contest, not without strenuous exertions, the 
desires of some men to use the great majority of the Republi- 
can party in that convention, for partisan advantage. It 
deemed its duty to be to serve the parties to which each 
man owed allegiance, by serving the state. And that was 
what led to this extraordinary agreement. That was why 
Democrats and Republicans alike voted for these great and 
salutary measures; that was why, after the close of the 
convention, there was almost unanimous approval of its 
work by the men engaged in it. 

It is with the deepest regret that I observe that among 
some people, perhaps among many of our fellow-citizens, 
there is an unwillingness to regard this great and important 
measure for the public welfare upon the same basis, love of 
country, and superiority to partisan advantage. All honor 
to Republicans and Democrats alike who united, regardless 
of party, to serve their state in seeking to give the people of 
the state a better government, and regret and sympathy for 
the future to those who reject that and seek to frustrate this 
great measure for the public good in order that there may 
be party advantage gained thereby. 

Perhaps I am misled; perhaps I insist unduly upon the 
work of the convention of which I was part. If I do, you 
must forgive me. I beg you to do me the honor to believe 



244 GOVERNMENT AND CITIZENSHIP 

there is no personal consideration which actuates me. Since 
I left this city sixteen years ago last summer, to devote 
myself to the service of the country and the state, I have 
had but one cHent. I have had but one desire. I have but 
one passion: and it has been for the prosperity, and the 
honor, and the growth in spirit and in power of my country 
and my state. 

I have given out all there was in me into this effort to do 
what I believed to be necessary for the perpetuity of our 
free institutions; this effort to make representative govern- 
ment worthy of itself. I have given out my strength, and 
my life to help bring that about. I hope that it will not 
prove to have been in vain. No, it cannot have been in 
vain. This constitution, I believe, will be adopted by the 
people of the state, but if it is not, the work of the conven- 
tion will not be lost. It will be but the beginning of a 
process which, through the working of the processes of free 
government, will bring out sooner or later, in substance, all 
the conclusions which are right and sound; for no honest 
effort in behalf of one's country can ever be lost. 

If it be not now that these great measures for reform are 
adopted, it must be after a hard experience with the evils 
they are designed to cure. We cannot go on with our govern- 
ment constituted as it is now without suffering for it. For 
it is bad in system, and we shall come later, if not now, 
through the lessons of hard experience, to realize that the 
measures included in this revised constitution are necessary 
for the well-being of the state and for the continuance of 
order, liberty, justice, and our free self-government. 



GOVERNMENT 



ACCEPTANCE OF THE NEW YORK 
SENATORSHIP 

ADDRESS TO THE LEGISLATURE OF NEW YORK 
JANUARY 28, 1909 

In response to a very wide desire that the state of New York should be repre- 
sented in the Senate of the United States as its importance required and its tradi- 
tions demanded, the Republican party of the state honored itself by requesting 
Mr. Root, then Secretary of State, to accept an election to that body at the hands 
of the Republican legislatiu-e. Upon Mr. Root's expression of a willingness to serve, 
if elected without any candidacy on his part, the Republican members of the legis- 
lature of New York met in caucus and unanimously chose him. Their choice was 
ratified by the legislature on January 19, 1909. Mr. Root accepted and qualified 
as senator on March 4, 1909, serving until March 4, 1915. 

I HAVE to thank you and I do thank you most sincerely 
for the very great honor which you have conferred upon 
me and for the great opportunity that you have set before 
me — to represent in the Senate of the United States the 
state of my birth and of my life. 

I shall do my best to justify your selection, with not too 
much confidence in the result, because I do not think that 
as a rule lawyers who have been many years at the bar and 
whose habits have become fixed, make very good legislators 
when they are not caught young, and I have a rather uncom- 
fortable sense that it will be quite impossible for me to live 
up to the many kindly and delightful things that have been 
said about me by my friends in the state of New York during 
the past few months. 

I have come to Albany in the hope of meeting the men 
who are leaders of opinion and of political action in the 
state of New York and who are, as they ought to be, in the 
two houses which legislate for the state. 

It is my strong desire to get into touch with you as the 
representatives of the people in the state legislature. I have 

247 



248 GOVERNMENT AND CITIZENSHIP 

been for the greater part of the past ten years in Washington, 
engrossed in the affairs of the national Government which 
have lain outside even of the limits of the United States, 
and I feel that I am a little out of touch with the current 
affairs of the state. 

I should like to get back into the same knowledge and 
familiarity with them that I had years ago when I was here 
within the state all the time. And I should be glad to estab- 
lish such a personal relation of acquaintance with every 
member of the senate and the assembly that if you have 
anything to say to me as your Senator in Congress you will 
feel at liberty to do so and that if I have anything to say to 
you I shall feel at liberty to say it. 

I mean this not merely with regard to the filling of offices, 
although every Senator of the United States is charged with 
the duty of representing his state in regard to appointments 
to Federal office from that state and in that state. He is a 
part of the appointing power, and it is his duty to see that 
as far as the exercise of his office, in vote and in advice, is 
concerned, his state has the benefit of its citizens' knowledge 
of character and reputation in their own communities, so 
that if a man has lived a good and useful and active life, is 
respected by his neighbors, is esteemed by them worthy of 
honor and capable of performing useful public service, this 
may be made known to the President in Washington through 
the voice of his representative in the Senate of the United 
States. 

But I mean more than that. Our Government is becom- 
ing complicated in a very high degree. Difficult questions 
are continually presented which affect the interests of every 
state; and the wide and immense and varied interests of 
the state of New York are particularly Hable to be affected 
by a great variety of measures which come before the 
national Congress. I would be glad to have you express 



ACCEPTANCE OF THE SENATORSHIP 249 

your opinions upon all measures which appear to you to affect 
the interests of the state. 

I shall be glad to be at liberty to consult you freely, as 
occasion offers, upon the practical operation of measures 
pending before the national Congress. 

If you think it will be beneficial to the state of New 
York, for example, as I now think it would be, to have a 
parcels post provision included in our postal laws, so that 
the 39,000 rural free delivery carriers instead of driving 
around the country with empty buggies, as they do now, 
shall earn enough to pay their salary by carrying small 
packages to the people they serve — if you think that would 
be beneficial to the interests of the state of New York, I 
shall be glad to have you say so, and if you think I am 
wrong in that I should be glad to have you say it. 

There is more to be considered, however, than the mere 
interest of the state of New York, in the relation which 
exists between you and your Senators in Congress. The 
different states of the Union are no longer isolated communi- 
ties. They are welded together in their interests, business 
and social, and the action of every one is felt upon every 
other. The interests of every one are bound up in the 
prosperity and the welfare of every other. 

With the great and complicated problems which are 
pressing upon our national Government, it is becoming every 
year more apparent that the people of no state can live to 
themselves alone, and that they have set before them as the 
highest of duties, the obligation to contribute their share to 
the solving of the great national problems for the mainte- 
nance and furtherance of that common interest which is 
vital to the people of every state but confined by the limits 
of no state. 

Upon these great questions I ask your help in the per- 
formance of those duties which you have imposed upon me. 



250 GOVERNMENT AND CITIZENSHIP 

The intimate connection between the people of every 
locality and of every other state, largely brought about by 
the increase of communication, the passing to and fro of the 
trains upon our great railroads, the telegraph and the tele- 
phone, the extension of business which knows no state lines, 
and the substitution of great national centers of business for 
the old state centers of business, the development of com- 
mercial and manufacturing and social life along national 
lines, has forced upon the national Government the per- 
formance of a great variety of duties which formerly were 
performed by the states within the limits of their com- 
paratively isolated communities. 
X By the exercise of the powers granted in the interstate com- 
merce clause of the Constitution, the national Government 
is extending its power over the operation of our railroads, 
our steamship Hues, our telegraph, our express companies. 
By the exercise of the taxing power it is regulating the 
action of the people all over the country, as for instance in 
the Oleomargarine Act. By the exercise still again of the 
commerce power it is controlling the adulteration of food 
and deceptive practices in the sale of food, as in the Pure 
Food law. 

The activities of the general Government are continually 
widening, step by step, covering ground formerly occupied 
by state action. 

That is not a matter of what we wish or what we do not 
wish; it is not a matter of political program or platform; 
it is plain fact to be seen by any one and a fact to be con- 
sidered. 

There is one advantage, a great advantage, which has 
come from it, is coming from it; that is, that we are acquir- 
ing effective control over the great developments of busi- 
ness activity in our country in many directions to a degree 
which could not be possible by state action; that we have 



ACCEPTANCE OF THE SENATORSHIP 251 

growing a strong, virile, competent and effective national 
Government; that we have built up a great national power 
respected and honored throughout the world; that America 
is a name for pride and satisfaction; that from all external 
attack this powerful national Government protects, and 
effectively protects, our homes, our families and our lives. 

But there are two dangers coming with this same develop- 
ment. One is the danger that the national Government 
will break down in its machinery through the burden which 
threatens to be cast upon it. This country is too large, its 
people are too numerous, its interests are too varied and its 
activity too great for one central government at Washington 
to carry the burden of governing all of the country in its 
local concerns, doing justice to the rights of the individual 
in every section, because that justice can be done only 
through intelligent information and consideration. 

And the mass of business that is now pressing upon the 
legislative and executive and judicial branches of our Gov- 
ernment in Washington seems to have come about to the 
limit of their capacity for the transaction of governmental 
business. 

The other danger is the danger of breaking down the 
local self-government of the states. After all, the thing that 
we have government for is ultimately the preservation of our 
homes and our individual liberty. And we ought to be at 
liberty to regulate the affairs of our homes in accordance 
with our own ideas. 

The tendency to vest all powers in the central government 
at Washington is likely to produce the decadence of the 
powers of the states. Now, do not misunderstand me. I am 
a convinced and uncompromising nationaHst of the school of 
Alexander Hamilton. I believe in the exercise of the execu- 
tive, the legislative and the judicial powers of the national 
Government to the full limit of the constitutional grants. 



252 GOVERNMENT AND CITIZENSHIP 

as those grants were construed by John Marshall, and would 
be construed by him today. 

But I believe that the founders of the Republic builded 
more wisely than they knew, when they set the limits 
between the exercise of that national power and the exercise 
of the local powers of the states. And while I believe in the 
exercise of the national power throughout the province of 
the constitutional grants of national power, I beHeve also in 
the preservation of state power within the limits of its con- 
stitutional authority. 

Further than that, I beHeve that the essential quality of 
free government is to be found in the observance by all 
pubKc officers of the Hmitations set by law upon their 
powers. Once admit the right of public officers to disregard 
limitations upon their powers and you are launched on the 
course by which good men come to be benevolent despots, 
with the inevitable corollary that bad men have the oppor- 
tunity to become tyrannical dictators. 

Evidently, if the powers of the states are to be preserved 
and their authority is to be continued, the states must 
exercise their powers. The only way to maintain the powers 
of government is to govern. 

Let me say that the men who make the most noise about 

state rights are very apt to be the men who are the most 

willing and the most desirous to have the national Govem- 

[/ ment step in and usurp the functions of a state when there is 

f j an appropriation carried with the usurpation. 

The men who are found opposing the maintenance of 
the authority of the treaty provisions of the United States 
made under the express grant of power in the Constitution 
are apt to be the very men who are anxious to have the 
Government come into their states and spend no end of 
money in doing the things that the states ought to do them- 
selves in the exercise of their powers. But the invitation to 



ACCEPTANCE OF THE SENATORSHIP 253 

the national Government to assume this and that duty within 
the Umits of a state is an invitation to set up national power 
to the ultimate exclusion of state power. 

Because I believe in maintaining the two grants of power 
of the Constitution, maintaining the national power to its 
full limit and still preserving the state power, I am opposed 
to everything that tends to belittle, to discredit or to weaken 
the authority of the legislature of the state. 

You cannot take power away from public bodies without 
having the character of those bodies deteriorate. For this 
reason I am opposed to the direct election of Senators, as I 
am opposed to the initiative and referendum, because these 
things are based upon the idea that the people cannot elect 
legislatures whom they trust. 

They proceed upon the idea of abandoning the attempt 
to elect trustworthy and competent state legislatures. But 
if you abandon that attempt, if you begin to legislate or to 
amend constitutions upon that theory, what becomes of all 
the other vast powers ol the state legislatures, in main- 
taining the system of local self-government under the 
Constitution ? 

If the people of any state are not satisfied to trust their 
legislature to discharge the constitutional duty of electing 
senators, let them cure their own faults and elect a legis- 
lature that they can trust. Ultimately, in the last analysis, we 
must come down for successful government to the due per- 
formance of the citizens' duty at the polls, and there is no 
reason to believe that the citizens would perform their duty 
in the direct election of senators, or in voting upon the initia- 
tive or the referendum, any better than they perform it in the 
election of members of the senates and the assemblies of 
the states. I am opposed to all steps that proceed upon the 
theory that the people of our states are to abandon the duty 
of making their state legislatures able and honored bodies 



254 GOVERNMENT AND CITIZENSHIP 

competent to perf onn the great duties of legislation for those 
great commonwealths. 

Let me say another word which directly bears upon the 
relations between the performance of your duties and the 
performance of duties in the body to which you have sent 
me. The intimate relations between the people who live on 
one side and the other of different state lines, and the in- 
creasing interdependence of people upon each other in wide 
communities that are not determined by state lines, have 
created a situation where, in the exercise of a great many of 
the powers that are reserved in the Constitution to the states, 
regard ought to be had, not merely to the direct interests of 
the people within the limits of the states, but also to the 
claims of neighborhood, the comity that should exist between 
different communities, the necessity for adjustment of rela- 
tive rights and interests. 

In other words, there is occasion to consider the relations 
of different states or different comrmmities in different 
states in the exercise of your powers as well as in the exercise 
of the national powers. 

Take for example the question about the pollution of the 
harbor of New York, with New York on one side and New 
Jersey on the other. It is not a subject I have studied, but 
it is a subject which I observe is up for consideration. I 
believe suit has been brought by the Attorney-General of 
the United States regarding it. The states of New York 
and New Jersey ought to agree upon a reasonable and just 
solution of the subject without any lawsuit from the Attor- 
ney-General of the United States. 

There are coming up continually questions in which the 
legislation of one state will vitally affect the interests of 
another. Upon those questions it ought not to be necessary 
for people to press the national Government to come in and 
usurp the functions of the state in order to have uniformity 



ACCEPTANCE OF THE SENATORSHIP 255 

of treatment on the subject. The states themselves ought to 
concur, consult, exercise consideration and good neighbor- 
hood toward each other in the performance of state func- 
tions in matters which affect other states. 

The Constitution contemplates such situations, for it pro- 
vides that states may make agreements with each other by 
the consent of Congress. It is not necessary that Congress 
shall stretch and strain its authority, but just in so far as 
the states neglect to perform their duties in such matters, 
just so far they invite the pressure upon Congress to lead it 
to attempt to remedy the evils by stretching the national 
authority. 

We have much to learn. We have much to do. The 
growing complications and many problems continually pre- 
senting themselves and taxing the best thought of the most 
experienced public servants; the problems of the future, the 
solutions of which are still undiscovered; the other problems 
certain to rise that we have not yet discerned — all these are 
making it more and more vital to the interests of every home 
in every state that the public servants of the state and the 
nation shall cooperate in the performance of the functions of 
government with a spirit of good citizenship, of patriotism 
and of loyalty to the Constitution under which we live. 

To that cooperation jointly with you I pledge myself 
for the next six years, if I live so long. 



THE DIRECT ELECTION OF UNITED 
STATES SENATORS 

ADDRESS IN THE SENATE OF THE UNITED STATES 
FEBRUARY 10, 1911 

A joint resolution was introduced in the Sixty-first Congress (S. J. Res. 134) to 
amend the fourth paragraph of Section 2, and the first paragraph of Sections 3 and 4 
of Article I of the Constitution of the United States. These paragraphs read as 
follows: 

Section 2. When vacancies happen in the representation from any State the 
executive authority thereof shall issue writs of election to fill such vacancies. 

Section 3. The Senate of the United States shall be composed of two 
Senators from each State, chosen by the Legislature thereof, for six years; and 
each Senator shall have one vote. 

Section 4. The times, places, and manner of holding elections for Senators 

and Representatives shall be prescribed in each State by the Legislature 

thereof; but the Congress may at any time by law make or alter such regulations 

except as to the places of choosing Senators. 

The joint resolution before the Senate, with the proposed changes in the Constitution 

indicated in italics, was as follows: 

The Senate of the United States shall be composed of two Senators from 
each State, elected by the people thereof (or six years; and each Senator shall have 
one vote. The electors in each State shall have the qualifications requisite for 
electors of the most numerous branch of the State legislatures. 

The times, places, and manner of holding elections for Senators shall be as 
prescribed in each State by the legislature thereof. [Omits the words: " but 
the Congress may at any time by law make or alter such regulaiiotis, except as to the 
places of choosing Senators."] 

When vacancies happen in the representation of any State in the Senate, the 
executive authority of such State shall issue writs of election to fill such vacan- 
cies: Provided, That the Legislature of any State may empower the executive 
thereof to make temporary appointments until the people fill the vacancies by 
election, as the legislature may direct. 

This amendment shall not be so construed as to affect the election or term of any 
Senator chosen before it becomes valid as part of the Constitution. 
The provision to amend Section 4 of Article I to which Mr. Root earnestly objected 
in his address of February 10, 1911, was rejected by the Senate before the resolution 
as a whole was voted upon. On February 28, 1911, the joint resolution, as amended, 
was put to vote and it failed to pass, two-thirds not having voted therefor, the vote 
being: yeas, 54; nays, 33. 

In the Sixty-second Congress, the joint resolution to amend Article I of the 
Constitution was again introduced (H. J. Res. 39) and passed the House containing 
the proposed amendment to Section 4 of Article I. In the Senate, Senator Bristow, 
of Kansas, offered an amendment to the joint resolution which consisted of the 

257 



258 GOVERNMENT AND CITIZENSHIP 

omission of the proposed amendment to Section 4 of Article I. Senator Bristow's 
amendment was adopted and the joint resolution as thus amended, passed the 
Senate Jime 12, 1911. The House disagreed to the Senate amendment, and a con- 
ference committee was appointed. The conference disagreed, and the Senate 
insisted upon its amendment. Nearly a year later, on May 13, 1912, the House 
receded from its disagreement to the Senate amendment, and the joint resolution 
was then passed without the proposed amendment to Section 4 of Article I. The 
joint resolution was certified to the Department of State, May 15, 1912, and 
transmitted to the several state legislatures for action thereon. On May 31, 1913, 
the Secretary of State, by proclamation, announced that three-fourths of the 
states (actually 36) having ratified the amendment, it had become valid as the 
Seventeenth Amendment to the Constitution of the United States. 
Mr. Boot spoke as foUows: 

THE joint resolution now before the Senate contains two 
separate and distinct amendments of the Constitution 
of the United States. The first amendment proposed is to 
change the third section of the first article relating to the 
election of Senators, so that it shall provide for the election of 
Senators by the people of the several states instead of their 
election by the legislatures of the states. That is accompanied 
by an appropriate provision regarding the filling of vacancies 
which may occur at such time that they cannot conveniently 
be immediately filled by an election. 

The other amendment proposed by the joint resolution 
is to strike from the fourth section of the first article the 
provision that — 

The times, places, and manner of holding elections for Senators and 
Representatives shall be prescribed in each state by the legislature thereof; 
but the Congress may at any time by law make or alter such regulations, 
except as to the places of choosing Senators. 

And to substitute therefor a provision that — 

The times, places, and manner of holding elections for Senators shall 
be as prescribed in each state by the legislature thereof. 

That involves two changes in the existing provision. One 
is to aboHsh the peremptory command of the Constitution 
directed to the legislatures of the states, requiring them, as a 
matter of their duty under the Constitution, to prescribe the 
times, places, and manner of holding elections for Senators, 



DIRECT ELECTION OF SENATORS 259 

and to substitute for that peremptory command for the 
performance of a duty under the Constitution a reference to 
action which the states may or may not take under their own 
authority. That change is accomphshed by inserting the 
word " as " in the new provisions. I hope I make it clear. 

The present section 4 of the first article of the Constitution 
provides that — 

The times, places, and manner of holding elections for Senators and 
Representatives shall be prescribed in each state by the legislature thereof. 

That is the command of the nation by the sovereign author- 
ity of the Constitution to the legislature of each state, requir- 
ing it to prescribe the time, places, and manner of electing 
Senators; and when they act they act in the execution of a 
mandate from the nation embodied in the national Constitu- 
tion. Now read the proposed substitute; 

The times, places, and manner of holding elections for Senators shall be 
as prescribed in each state by the legislature thereof. 

If a state prescribes, well and good. It does it under its 
own authority. If a state does not prescribe, well and good. 
There is no mandate of the Constitution of the United States 
requiring the state to do it. It is a clear, distinct, and 
unquestionable abandonment of the requirement of the 
Constitution for this fundamental and essential act under 
national authority for the preservation of the national life. 

The second change in the fourth section of the first article 

of the Constitution is made by omitting from that section all 

authority in Congress to make or alter the regulations which 

are prescribed. The present section reads: 

The times, places, and manner of holding elections for Senators and 
Representatives shall be prescribed in each state by the legislature thereof; 
but the Congress may at any time by law make or alter such regulations, 
except as to the places of choosing Senators. 

The proposed substitute for the fourth section reads: 

The times, places, and manner of holding elections for Senators shall be 
as prescribed in each state by the legislature thereof. 



260 GOVERNMENT AND CITIZENSHIP 

All vestige of national authority as the source of power to 
perform the act and of national control over the performance 
of it, or of national power to modify or supplement or compel 
conformity to national interests, disappears from the provi- 
sion which is recommended to the Senate in the joint resolu- 
tion now before us. 

Mr. President, I am opposed to both of these amendments. 
I am opposed to changing the election of Senators from the 
legislatures to the people at the polls, and I am opposed to 
abandoning the authority of the National Government over 
the election and the constitution of the members of this 
branch of the Government. 

Let me first state the reasons why I am opposed to the 
change in the manner of electing Senators. 

It is not wise that the people of the United States should 
contract the habit of amending the Constitution. Stabihty 
in our Government is a matter of vital concern. When 
America set forth in her great experiment, the almost uni- 
versal opinion of the world was that she would speedily 
encounter the disasters that all attempts at popular govern- 
ment had met before that day. The world knew well that 
the tendency of democratic government was toward frequent 
change; it knew well that, while all forms of government 
have weaknesses pecuhar to themselves, the weakness of 
democratic government was its HabiHty to change with the 
impulse and enthusiasm of the moment, and, through con- 
tinual changes, to vary from extreme democracy, which men 
called ochlocracy, on the one hand, to oHgarchy and dictator- 
ship on the other. And since the time when our fathers 
framed the Constitution, half a score of nations, seeking to 
follow the lines of our experiment, have, in varying degree, 
and some of them to the last degree of failure, justified such 
an apprehension. 

But with us, Mr. President, there has been one great 
anchor. In our Constitution we have embodied the eternal 



DIRECT ELECTION OF SENATORS 261 

principles of justice; we have set up a barrier against our- 
selves. As Ulysses required his followers to bind him to the 
mast that he might not yield to the song of the siren as he 
sailed by, so the American democracy has bound itseK to the 
great rules of right conduct, which are essential to the pro- 
tection of liberty and justice and property and order, and 
made it practically impossible that the impulse, the prejudice, 
the excitement, the frenzy of the moment shall carry our 
democracy into those excesses which have wrecked all our 
prototypes in history. 

Mr. President, reverence for that great instrument, the 
belief of mankind in its perpetuity, the unwillingness of our 
people to tamper with it or to change it, the sentiments that 
are gathered around it — these, constituting the basis of 
stability in our Government, are the most valuable of all the 
possessions of the nation that inhabits this rich and fertile 
land. Because the American people stand by their Constitu- 
tion and are unwilling to yield to suggestions that it be tam- 
pered with and altered upon sHght provocation, every acre of 
farm-land, every farm-house and bam, every stock of goods, 
and every manufactory in the country are of greater value. 
No change in our Constitution should be permitted to cast a 
doubt upon its permanency and inviolability, imless there be 
the weightiest and most commanding reasons. All presump- 
tions are against it. The great pubHc policy of a century is 
against it. A heavy burden rests upon those who wish to 
make the change. 

This is especially true, Mr. President, when a change is pro- 
posed which in any degree alters the delicate relations which 
exist between the national and the state governments, or 
which in any degree affects or modifies any of those great 
compromises of the Constitution which enabled the thirteen 
original colonies, different in interests, in traditions, in size, 
in population, and in industries, to adjust their different 
views and to enter into a binding agreement. 



262 GOVERNIVIENT AND CITIZENSHIP 

Whenever a proposal is made to change the provisions that 
affect the relations between the states and the National Gov- 
ernment, or to modify any of the terms of one of those great 
compromises upon which the institution rests, there are 
special reasons for rejecting it, and a double burden rests 
upon those who propose it. For more than one hundred years 
the provisions of this instrument as they are, with every sen- 
tence weighed, with every word scanned and receiving its full 
meaning, have been considered and clarified and determined 
upon by the courts. Our people have become accustomed to 
statutes based upon these provisions as they are. A great 
war has been fought to settle the most vital and important of 
the questions arising under this instrument as it is. The dif- 
ferent parts have become adjusted to each other. We have 
come to understand what their relation is. The ship has 
found itself and we are free, after a century of discussion, 
from serious questions as to the relations of the general and 
state governments. 

How the field of discussion has changed ! Look at the old 
records of Congress, and you will find them filled with ani- 
mated and excited controversies which have passed away. 
And now I say that for us to launch into a new era of changed 
provisions and new questions arising from them, would be 
justified only by the most serious and weighty reasons. 
Changes by amendment may seem to gentlemen who propose 
them simple, and their effect may seem to be unquestionable. 
But, Mr. President, no one can foresee the far-reaching effect 
of changing the language of the Constitution in any manlier 
which affects the relations of the states to the general gov- 
ernment. How Httle we know what any amendment would 
produce! 

One hundred and seven years ago we made an amendment 
relating to the election of the President and Vice-President. 
Has that amendment produced the result which its authors 



DIRECT ELECTION OF SENATORS 263 

expected ? No; far from it. The results of action under 
that amendment are as different from those which were 
expected by its authors as our Government is different from 
the government of any Oriental power. 

Forty-five years ago we made a series of amendments, fol- 
lowing upon the great Civil War. Have those amendments 
worked out as their authors expected ? No. No man can 
open to the fourteenth and fifteenth amendments of the Con- 
stitution, and for a moment maintain that they have accom- 
plished what the Congress of the United States expected 
them to accomplish when it passed the resolutions for their 
submission, or what the state legislatures expected when they 
approved them. 

We enter upon a field of doubt, of new discussions, the 
end of which no man can foresee, when we begin to tamper 
with the delicately adjusted machinery to which we have 
been so long accustomed and which we now understand 
so well. 

Mr. President, there has been but little attempt here to 
assign reasons for the proposed change in the election of Sena- 
tors. It has been left in the main to rest upon the proposition 
that the people of the country desire it; that there have been 
resolutions adopted by many legislatures; that planks have 
been put in many political platforms; and that as a whole the 
people of the country wish for the change. 

I am convinced, sir, and I think I can anticipate a general 
agreement from the members of this chamber in the proposi- 
tion, that the desire of the people for this change, if there be a 
desire, is not a very active and violent feeling. It is a rather 
mild assent to a proposition which is suggested to them as an 
appropriate remedy for certain ascertained and recognized 
evils. There is, we aU know, a general tendency in all democ- 
racies to favor propositions which look to the extension of 
power at the polls. Extension of suffrage, extension of the 



264 GOVERNMENT AND CITIZENSHIP 

direct power of the voters at the polls, naturally receive 
assent at first blush. 

There is another tendency which is natural and in which we 
all share, and that is that when an evil is recognized, and 
some one suggests that such and such a provision of law will 
cure the evil, our interest is attracted and our support is 
conciliated for the proposed measure. 

I submit that what the people of the country really want is 
to have certain evils which they recognize in the present elec- 
tion of Senators cured, and that they are quite indifferent 
about this change except as it is certified to them to be a sure 
cure for the evils. Whether it will be a cure or not has been 
little discussed and Kttle considered by the people of the 
United States, and it has been Uttle discussed and little 
considered by the Senate. 

The evil which the people of the country wish to see cured, 
and which I wish to see cured with them, and we aU do, con- 
sists of certain patent defects in the working of the system of 
election of Senators by the state legislatures. 

The first of those is a defect in the execution of the law 
which requires them to select. It is the deadlock that exists 
so frequently. The inexpHcable delay of the legislature of 
Montana to return my friend, the Senator from Montana 
[Mr. Carter], the obstinacy of all branches of the Democratic 
party in the legislature of New York, the reluctance of the 
legislature of Iowa to follow any of its great and gifted 
leaders, all these cause dissatisfaction on the part of the 
people, and, I beheve, constitute the chief reason for the 
assent of the people to propositions to change the manner of 
election. 

But, Mr. President, is it not our duty to say to the people 
of the United States that these deadlocks come not from the 
constitutional provision, that they come from our statute of 
1866 ? They can be ended forever on any day by this Con- 



DIRECT ELECTION OF SENATORS 265 

gress through a simple amendment of the statute. For the 
deadlocks arise from the fact that our statute requires a 
majority vote, and everywhere among people of independence 
and individual will it is a difficult thing to secure a majority 
vote. 

If we chose today to amend our statute so that the legisla- 
tures of these states could elect by a plurality, they would 
elect tomorrow. If we chose to say that in any legislature 
where a majority vote should not be obtained within thirty 
days of the beginning of the Congress in which the successful 
candidate was to take his seat, there should be an election by 
plurality, in every one there would be an election the day 
after the period expired. And what is more, there would be 
majorities obtained in order to avoid those elections by 
pluralities. 

But we have not chosen to do it. We have fallen upon 
times when it seems as if not the last thing, but the first thing 
that is to be done to cure an evil, is to amend the Constitution 
of the United States. Mr. President, this very joint resolu- 
tion proposing to amend the Constitution of the United 
States will force us to abandon the majority rule and to 
entrust the election of Senators to a plurality, for never can 
the Senate of the United States maintain a working force if 
a majority vote is required for the election of Senators by the 
people of the several states. 

I appeal to a universal recognition of the fact that it will 
not be practicable to have Senators elected under a require- 
ment of a majority vote in case this amendment to the 
Constitution is adopted. In every close state, the outlying 
parties, the irreconcilables, not occasionally or accidentally, 
but as a rule, poll more votes than the difference between 
the two great parties, and that means that, as a rule, in the 
close states of the Union, no one is elected by a majority 
vote. 



266 GOVERNMENT AND CITIZENSHIP 

So, sir, we are proposing to cure this evil by an amendment 
of the Constitution which lands us in the same position as to 
the rule of majority or plurality that we would reach if we 
cured it as we can cure it absolutely, by an amendment of our 
statute. 

But there is another reason why the people are dissatisfied 
with the discharge of the functions of our state legislatures. 
From time to time there are rumors, suspicions, and occasion- 
ally proofs of corrupt conduct on the part of state legisla- 
tures, and from time to time a belief that state legislatures 
have been influenced by personal considerations or controlled 
by extra-official influences in the performance of their duty. 

Mr. President, we are too apt, in having our attention fixed 
upon the exceptional, to forget the usual. It is true that what 
have long been known in this chamber as forbidden and 
abhorrent forces do sometimes affect the election of a 
Senator; but it is only occasional, and the great body of the 
members of the Senate are, and always have been, elected as 
the free and inteUigent judgment of their state legislatures 
dictate. 

There is no claim, sir, that I have heard, certainly there has 
been no ground suggested to sustain a claim, that an honest 
and intelHgent legislature, fairly canvassiug the abilities and 
the character of the men who can best serve their country as 
Senators for their states, cannot make as good a choice, if not 
a better choice, than the electorate at large. 

There has been no claim, or certainly no ground stated to 
sustain a claim, that the wise men who framed our Constitu- 
tion were mistaken in their belief that wise and uitelligent 
and faithful state legislatures would make the best possible 
choice for Senators of the United States. 

No; the real ground is that, arguing from these exceptional 
and occasional cases, the people of the United States have 
been led to believe that the legislatures of their states are 



DIRECT ELECTION OF SENATORS 267 

unfaithful to their trust in making their selections, and that 
they will continue unfaithful. 

Mr. President, what is the remedy the people of the United 
States should seek, if this be true ? Are they to abandon the 
performance of their duty in the election of their state legis- 
latures ? Are they to abandon the system, rather than 
reform the system ? This whole proposition rests upon the 
postulate of the incapacity of the people of the United States 
to elect honest and faithful legislatures. If the framers of the 
resolution had made it read so that it would express the true 
principle on which they base it, they would have made it read 
like this: 

Whereas, The people of the several states have proved incompetent 
to select honest and faithful legislators in their own states: 

Resolved, That the Constitution of the United States be so amended as 
to relieve the people from the consequences of their incompetency by 
taking from the state legislatures the power to choose Senators of the 
United States and vesting that power in the same incompetent hands. 

But, Mr. President, if the people of our states are to aban- 
don the attempt and be faithless to the duty to elect honest 
and faithful legislatures, what becomes of the governments 
of our states ? In the growing complication of life, the daily 
increasing interdependence of all men under our highly 
developed social system, under which for food, for clothing, 
for shelter, for fuel, for health, for opportunities for business 
and for transportation, at every side and on every occasion 
in life we are dependent on each other, day by day we grow 
to rely more and more on the government that is regulating 
all the agencies that are necessary to our lives. What govern- 
ment shall perform that function ? If the state government 
is abandoned, if we recognize the fact that we cannot have 
honest legislatures, sir, the tide that now sets toward the 
Federal Government will swell in volume and in power. 
Here is a power that can answer the demands of life. 



268 GOVERNMENT AND CITIZENSHIP 

Let me tell the gentlemen who are solicitous for the pres- 
ervation of the sovereignty of their states, that there is but 
one way in which they can preserve that sovereignty, and 
that is by repudiating absolutely and forever the fundamental 
doctrine upon which this resolution proceeds. Let them go 
home to their states when this session ends and invoke the 
patriotism of their people to make the government of their 
states worthy of the great duties that rest upon them and 
competent to preserve the autonomy of their states against 
that incursion of Federal power which is being continually 
urged, urged, urged, by those who fail to find satisfaction 
from the governments of the states. 

In my humble judgment, sir, the most vital thing to be 
done in the United States today is to strengthen the legisla- 
tures of the states. I fear the breaking down of the govern- 
ment of the United States by the accumulation of demands 
upon it, through the gradual weakening of the state govern- 
ments, through the failure of the state governments to keep 
pace with the continually increasing demands of our social 
and business life. 

We have come very near the limit, sir, of what we can com- 
petently do, very near the limit of what we can do as well as 
it ought to be done. Our executive officers are overburdened. 
The business of this Congress is conducted with less and less 
knowledge on the part of the members of the body in general 
as to what the committees have been doing. We are forced 
session by session to more complete reHance upon the reports 
of the committees, with less and less consideration from the 
members of the Congress at large. Our judicial force is being 
overburdened and our calendars clogged, and we are looking 
about for ways to relieve this court and that from too heavy 
a burden, and to prevent the law's delays. 

Let us continue upon the theory that state governments 
are corrupt and incompetent. The time will come when the 



DIRECT ELECTION OF SENATORS 269 

Government of the United States will be driven to the exer- 
cise of more arbitrary and unconsidered power, will be driven 
to greater concentration, will be driven to extend its func- 
tions into the internal affairs of the states; and then sooner 
or later the people of the country will reject a government 
that has subjected their personal and intimate neighborhood 
affairs to the control of a central power in Washington, and 
then, in the place of competent states governing their own 
affairs, we shall go through the cycle of concentration of 
power at the center while the states dwindle into insignifi- 
cance, and ultimately the breaking up of the great Republic 
upon new hues of separation. 

Mr. President, there is another view of the fundamental 
proposition on which this resolution rests. It is an expression 
of distrust for representative government. It does not stand 
alone. It is a part of the great movement which has been 
going on now in these recent years throughout the country, 
and in which our people have been drifting away from their 
trust in representative government. These modem constitu- 
tions which are filled with specific provisions, limiting and 
directing the legislature in every direction, furnishing such 
.startling contrasts to the simplicity of the Constitution of 
the United States, are an expression of distrust in representa- 
tive government. The " initiative '* is an expression of dis- 
trust in representative government. The " referendum '* is 
an expression of distrust in representative government. 

This resolution is an expression of the same sentiment. 
And strangely, sir, this movement comes at the very time 
when the development of our country in its business and 
social and political life makes it all the more necessary that 
we should depend upon representative government. We 
have gone far, far away from the days of the old New Eng- 
land town meetings. I doubt if some of the Senators coming 
from states of small population realize how far we have gone 



£70 GOVERNMENT AND CITIZENSHIP 

in the great industrial communities of the East and the 
Middle West from that condition in which direct democratic 
government is possible. 

Mr. President, this whole series of expressions of distrust, 
the detailed limiting constitutions, the initiative, the refer- 
endum, the amendment of the Constitution which is now 
before us, are all an expression of that weakness of democ- 
racies which it is the function of the Constitution to guard 
democracies themselves against. 

Mr. President, what is to become of the state legislatures 
if we follow the principles of this resolution ? If you rob 
them of power, of dignity, of consequence, what will be the 
personnel of the state legislatm*es ? We have had illustra- 
tions. The boards of aldermen in some of our American 
cities, originally bodies of high consideration, filled by citizens 
of consequence and of high standing among their fellows, 
have dwindled and sunk to insignificance and worthlessness, 
as power after power has been taken away from them. Once 
begin the progress in that direction by taking the first step 
based upon the principle of this resolution and you will 
find the members of our state legislatures growing less and 
less competent, less and less worthy of trust, and less and less 
efficient in the performance of their duties. 

You can never develop competent and trusted bodies of 
pubhc servants by expressing distrust of them, by taking 
power away from them, by holding them up to the world as 
being unworthy of confidence. Honest men, good men, self- 
respecting men, men whose standing in their community 
makes it desirable for the public service that they shall go 
into our state legislatures, will never subject themselves to 
be ranked in bodies suspected and discredited and deprived 
of power. 

Mr. President, this resolution providing for an amendment 
is not an expression of confidence in the people; it is an 



DIRECT ELECTION OF SENATORS 271 

expression of distrust in the people. It is not progress; it is 
a slipping back. It is not an improvement on our system 
of government; it is an abandonment of our system of 
government. 

The true remedy for the evils that we see is not to abandon 
our duty, but to perform it. Sir, there is no weaker course for 
men to take than to endeavor to make up for the failure to do 
their duty by changing the form of the duty. This is a propo- 
sition that the people of the several states who have stayed 
away from the polls, who have been deaf to the considerations 
of public interest, who have allowed personal favoritism to 
supplant their desire to select the best public servants, who 
have been bought to cast their franchises, as the people of 
Adams County, Ohio, were bought, instead of curing them- 
selves and performing their duty in the election of their state 
legislatures, shall try another way to select Senators of the 
United States. It is a proposition that the people who can- 
not elect honest men from their own neighbors can elect 
honest men to the Senate of the United States. 

Sir, what vote ever cast by an American citizen can be cast 
with a stronger probability that it is well informed than a 
vote for a member of his legislature ? He is a neighbor; he 
is a man whom he has known all his life; he knows all about 
him. How can the men who are unable or unwilling to 
perform the duty of making a selection of an honest and 
faithful legislator from their own vicinage improve upon 
their performance in the selection of a candidate in a state- 
wide election of candidates whom most of them know very 
little or nothing about, except what they get from the news- 
papers ? 

Sir, apart from that, it is never possible to cure neglect of 
duty by changing the form. There is but one safety for a 
popular government. No matter what constitutions you 
have or what statutes you enact, sooner or later you come to 



272 GOVERNMENT AND CITIZENSHIP 

the polls; and if you do not have virtue and public spirit 
there, your government goes down. 

I press upon the Senate now the duty of saying that it wiU 
not give its assent to any attempt at an evasion of that duty 
by the people of the United States. The pathway hes clear 
before them under the Constitution. If they wiU do their 
duty, the Constitution needs no amendment. If they do not 
do their duty, you can amend the Constitution a thousand 
times without any utility. Here, if anywhere, the truth 
ought to be told; here, if anywhere, should be found men 
with the courage to say to their own constituents: " The 
trouble in the election of Senators of the United States is not 
in the Constitution; it is with you; it is because you are not 
doing your duty." If there be no voice found in this land 
with authority and power to reach the minds of our people 
with such a message, then we are caucusing over idle words 
when we talk of an amendment to the Constitution. 

Mr. President, it is wholly unnecessary to abandon the 
attempt to elect honest legislatures. The whole purpose of 
relieving and remedying the evil which has led to this agitation, 
for an amendment to the Constitution can be accompUshed, 
and it is in process of being accomplished, without an amend- 
ment. We are today in a condition of affairs political, 
social, and business which is but temporary. The enormous 
increase in the productive capacity of mankind, followed by 
an enormous increase of wealth, an incre^tse which always in 
the beginning is congested before the processes of distribution 
are fuUy at work, is in active operation. The necessity for a 
readjustment of the relations of government to the great 
properties that constitute and continually create wealth, to 
the great enterprises through which that wealth is gained 
and is continued — the necessity for a readjustment of the 
relations of government to these new conditions has led to a 
control over our state legislatures in many cases which is 



DIRECT ELECTION OF SENATORS 273 

abnormal, which is to be condemned, and which has been 
the cause of practically and substantially all the evils that 
imderlie the desire for a reform. That control has been exer- 
cised in part through a form of political organization which 
grew up under simpler conditions and is in many respects out- 
grown by our people, and in part by the direct application of 
the wealth which was seeking to save itself from destruction 
in the readjustment of conditions to influence the action of 
legislators. 

I say that condition is temporary. I say the process of 
relieving it is going on, and is going on all over this land. 
I think it has been proceeding longer in the Southern states 
and then in the Western states, and now in the Eastern 
states. With many of the expedients for the readjustment I 
do not agree; with many of them I do agree. Of this I am 
certain, that, altogether, they exhibit the strivings of a great 
democracy adjusting itself to new conditions, and they are 
bound to result in a successful accomplishment. The pendu- 
lum will swing to and fro. Experiments will be tried and 
abandoned. Experiments will be tried and found successful 
here, and needing modification there; but ultimately we 
shall come back to a new adjustment under the new relations, 
having all the competency of popular government that 
existed before the great increase of wealth in our generation. 

Mr. President, the proposers of this joint resolution ask 
that we shall make one of the first steps in this great experi- 
mental process, the irrevocable step, of amending the Con- 
stitution of the United States. Ah, Mr. President, that is an 
inconsiderate proposal. It is hardly worthy of grave and 
experienced legislators. The time may come, after all these 
experiments have been worked out, when it will be found 
necessary to amend the Constitution. I do not believe it 
will; I am confident that imder the broad terms of that 
instrument, which has been suflficient for all the growth and 



274 GOVERNMENT AND CITIZENSHIP 

change of a century and a quarter, the process of reform 
which has now begun, will go on to a successful end, in con- 
formity to the Constitution as it is. But, if I am wrong, if at 
some time or other it becomes needful to amend the Constitu- 
tion for the purpose of remedying evils, let us amend it after 
the experiment, and not at the beginning; let us do it as the 
result of that experience which brings wisdom, and not as 
the result of those conjectures which lead to continual change. 

Mr. President, there are specific reasons against this 
change. The first and great reason in my mind is that it is 
inconsistent with the fundamental design of the Senate. The 
purpose of the Constitution was to create in the Senate a 
body which would be as unlike as possible to the other House. 
It was to be a body more secure in tenure, different in the 
manner of its election, different in its responsibility, more 
conservative, more deHberate than the other House, which 
responds year by year to every movement of the pubhc 
mind and the public feeling. As the limitations of the Con- 
stitution were set up by the American democracy to protect 
them against themselves in every impulse to violate the 
fundamental rules of justice, so the Senate was estabhshed 
by the Constitution to protect the American democracy 
against itself in the legislation which was required under the 
Constitution. 

The f ramers of the Constitution realized that the weakness 
of democracy is the KabHity to continual change; they 
realized that there needed to be some guardian of the sober 
second thought; and so they created the Senate to fulfill 
that high and \dtally important duty. IMr. President, this 
change tends to decrease the difference between the Senate 
and the lower House. It tends to make the two more alike; 
it tends to make the function of the Senate less distinctive, 
and to reduce the benefit which the Senate can render to the 
pubhc service. 



DIRECT ELECTION OF SENATORS 275 

There has been a restiveness in the country at times, Mr. 
President, over the delay of the Senate; but when you 
examine the statutes, and when you talk with your fellow- 
citizens wherever you may go throughout the country, of 
whatever calling or condition in life, you will find that 
America has suffered not from too little, but from too much 
legislation; not from too much consideration, but from too 
hasty and inconsiderate action; and if you will probe down 
into that imiversal consciousness of the people that is never 
wrong, you will find that there rests a conviction which proves 
beyond the possibility of doubt that in the delay, in the long- 
drawn discussion, in the deliberate and unhurried action of 
the Senate, it has during all its existence performed its duty 
to the Government and to the people of the United States. 

This change would tend to decrease the peculiar quality 
and character of the Senate which has enabled it to perform 
its duty. 

This change would interfere with one of the great com- 
promises of the Constitution, and would lead the minds of 
our people up to the point where they look over into the con- 
stitution of the Senate — and let me say to the gentlemen 
who are here as Senators for states with but a few thousand 
or few hundred thousand people, states with 84,000, with 
124,000, with 300,000 population, which have the same repre- 
sentation as Illinois, with her five millions and nearly six, 
Pennsylvania, with six millions and nearly seven, and New 
York, with nine milUons, that they cannot afford to put these 
great industrial communities in an attitude where they feel 
that the honorable obligation of the great compromise of the 
Constitution has been taken away. 

This change, sir, would prevent the Senate from having the 
benefit of the service of a large class of citizens who are spe- 
cially qualified by character and training to render a peculiar 
kind of service specially needed for the purposes of the Sen- 



276 GOVERNMENT AND CITIZENSHIP 

ate; men who by lives of experience and effort have attained 
the respect of their fellow-citizens and who are willing to 
undertake the burdens of public office, but are unwilling to 
seek it; men who will accept the burden as a patriotic duty, 
accept it doubtless with mingled feelings of satisfaction at the 
honor and dissatisfaction with the burden, the disturbance of 
life, the abuse of the press, the controversies about perform- 
ance of duty, but who never would subject themselves to the 
disagreeable incidents, the labor, the strife, the personahties 
of a political campaign. 

Mr. President, I do not mean to say — I beg that no one 
who hears me will for a moment think that I consider that 
such men as I have described are any better or more useful to 
the pubHc than the men who are younger and full of the 
energy of life and the willingness for strife. No; if we can 
have but one class, then let us have the young and the vigor- 
ous; but, Mr. President, we are not confined to the choice of 
one. We can have both; and it was the purpose of the crea- 
tion of the Senate that it should contain men who should be 
the elder statesmen and who should answer to the universal 
appreciation of the dignity and dehberate judgment involved 
in the title. Senator. 

This change will exile from the floor of the Senate men who 
answer closely to many of the greatest names in the glorious 
history of this body. Still you approach nearer and nearer to 
identity with the lower House, to identity with those func- 
tions that it is necessary the lower House should perform, 
identity with those characteristics that it is necessary the 
lower House should have and which ought not to be duph- 
cated here, else our usefulness will greatly disappear. 

Mr. President, this change would take the direct responsi- 
bility of Senators for their actions from the states legislatures 
to the people at the poUs. The members of the state legisla- 
ture — I am talking about an honest and faithful state legis- 



DIRECT ELECTION OF SENATORS 277 

lature, such as I know our people can have if they do their 
duty — are familiar with the incidents and the difficulties of 
legislation. They know how necessary it is that in order to 
accomplish beneficent results mutual concessions shall be 
made. They know how impossible it is that any one man, or 
any one locality, or any one state can have all of its own way. 
When members of this body have to explain to the state 
legislature the reasons for their action, they meet minds that 
are competent and trained for the appreciation of their 
explanation. The people at large have far less understanding 
upon the subject that I am now speaking of than their legis- 
lature; and the inevitable result of such a change as this will 
be to increase the unyielding opposition of the position of one 
state and its Senators to the position of other states and their 
Senators. It will largely do away with the benefit of discus- 
sion and comparison of views and mutual concessions, and 
that fair and open-minded yielding to the argument of our fel- 
lows, which is the essential of good legislation. This will 
cease to be a deliberative body if every Senator has to con- 
vince, to explain to the great body of the people of his state 
every act he performs and every concession he makes. 

Mr. President, it is unnecessary to demand or to provide 
for a reform in the constitution of the Senate upon the theory 
that the existing system has failed. I grant you that occa- 
sionally bad men are sent to the Senate; occasionally a 
man is sent here who would not have been chosen by a fair 
and honest choice of the people of his state; but, sir, they 
find their level and they find it in innocuous insignificance 
here. I undertake to say — I am so young a member of this 
body that I can say it, the basis of my experience and my 
observation have been so largely formed while holding 
executive positions and not as a member of this body — I 
undertake to say and to maintain here or anywhere that 
never in this world has any institution of government 



278 GOVERNMENT AND CITIZENSHIP 

wrought out more successful results than the provision of 
the American Constitution for the selection of Senators of the 
United States. Exercising a power more varied than any 
other dehberative body in the world; sharing in the legisla- 
tive and executive and judicial functions; with control over 
the laws providing for the raising and the expenditure of 
revenue, through its constitutional power of amendment; 
with control over the appointments to offices by the necessity 
for its confirmation; with control over foreign affairs, through 
the necessity of its consent to the ratification of treaties; 
with the function, that highest of all judicial functions, con- 
stituting it the court for the trial of impeachments, — after 
a century and a quarter of life, I declare to you and to my 
countrymen that the Senate of the United States has per- 
formed its duty loyally, faithfully, and competently, and has 
furnished to the history of its country a line of illustrious 
names and a record of great achievement which provide one 
of the most convincing proofs the world has yet had that 
popular government through representative institutions is a 
possibility among men. 

When we consider the multitude of failures that line the 
pathway of history, when we consider the multitude of diffi- 
culties that stand in the way of successful government, let us 
pause before we abandon the character and the constitution 
of a body which has proved itself and been proven as has the 
Senate of the United States. 

Mr. President, one of the illustrations of the dangers of 
intermeddhng with this deKcate relation between the states 
and the National Government estabHshed in our Constitu- 
tion is found in this joint resolution. The gentlemen who 
fathered this joint resolution have found that they could not 
make this change without going on and proposing another 
amendment striking at the relation between the states and 
the National Government at a vital point. The interde- 



DIRECT ELECTION OF SENATORS 279 

pendence of these provisions of the Constitution is well 
illustrated by this joint resolution. The danger of tampering 
with one cog, one spring, one lever, one wheel of this delicate 
machinery is well illustrated by the fact that in the same 
breath that the committee reports a resolution for a change 
in the manner of electing Senators it reports a resolution to 
revolutionize the relation between the National Government 
and the states. I say " revolutionize " advisedly. The theory 
of our Constitution was that regarding all matters within 
the limit of the Constitution the relation of the National 
Government should be a direct relation between the Gov- 
ernment and the people; that it should operate upon the 
people. It was that these Senators who are about me are not 
ambassadors from a foreign State, but they are oflScers of the 
United States ; that their primary obligation is not to any one 
state, but it is to the common good of the commonwealth of 
the United States. And the theory of the Constitution was 
that the National Government should be invested with all the 
powers necessary for the preservation of its national Hf e and 
the execution of its national powers and the performance of 
its national duties, so that it would not be dependent in any 
respect upon the will or pleasure of any state. That was the 
fundamental change from the Confederation to the Union 
under the Constitution. 

So the Constitution, after providing that the members of 
the House of Representatives should be elected by the people 
and that the members of the Senate should be elected by the 
legislatures, provided that the times and places and manner 
of holding elections shall be prescribed. 

As I have already said, it is a peremptory command, so 
that the duty is performed as a duty under the Constitution 
of the United States and not at the will or pleasure of the 
state itself. They provided that when the times, places, and 
manner of holding elections for Senators and Representatives 



280 GO\^RNMENT AND CITIZENSHIP 

have been prescribed by the legislature of a state, in per- 
formance of that duty under the national Constitution, the 
Congress itself may at any time by law make or alter such 
regulations. 

Now, I submit that the proposed substitute, which takes 
out of the Constitution the peremptory command resting 
upon the legislatures of the states, and which takes out of 
the Constitution the right of the National Government to 
make or alter regulations for the selection of the members of 
the Senate, revolutionizes the relations between the Govern- 
ment of the United States and the government of the states. 
We no longer have, if this amendment is adopted, the power 
of self-preservation and self -perpetuation. 

James Madison, of Virginia, was the great advocate of the 
provision which gave to the Government of the United States 
the power, in the last resort, and, if ever need be, to control 
and direct and require the elections which were to determine 
the constitution of both bodies of its national legislature. 
Now, sir, we are about to abandon it, if this resolution is 
adopted. 

Mr. President, the provision which is now to be wiped 
out of the Constitution was the basis of the Federal election 
law. 

My memory goes back far enough to remember the condi- 
tion of affairs in the state of New York when the Federal 
election law of 1870 was first appHed. For several years 
while it was in force I happened to be the district-attorney of 
the United States for the southern district of New York and 
to be charged with the enforcement of it. I beg to assure my 
colleagues in the Senate that the application of that Federal 
election law broke up a condition of corruption in the elec- 
tions in the city of New York which made the election of 
Senators and presidential electors a mere matter of the dic- 
tation of one man. Ballot-box stuffing, false counting. 



DIRECT ELECTION OF SENATORS 281 

repeating in large parts of that city were the rule rather than 
the exception, and it was only the application of the Federal 
election law of 1870 which made possible a reform in those 
conditions and led the way which the state of New York itself 
followed by its own enactments, designed to continue the 
honesty of elections produced by the application of the 
Federal law. 

I do not know, sir, that the time will ever come — I hope it 
never will — when it will be necessary to apply another 
Federal election law to prevent the creation of members of 
this body from being a shame and a disgrace, but I protest 
against robbing our nation of the power to exercise such 
control over the selection of the men who are to constitute 
its Government. 

I am deeply sympathetic, Mr. President, with our friends 
from the South, who are dealing with the difficult problem of 
adjusting the relations between the white and the black popu- 
lations of their states. I look back over our history and real- 
ize that mistakes have been made in the attitude of that part 
of the country where I was bom and bred and where I 
received my first ideas of the political policy of our country. 
I would not now like to see an attempt to stretch out the 
hand of Federal power and interfere with the progress of our 
friends in the South toward the solution of that difficult and 
embarrassing problem. 

But, Mr. President, I must protest with all the energy of 
which I am capable against our coimtry's robbing itself of the 
power to do so if need be. 

Freely conceding to our friends of the South the manifold 
shortcomings of my own people in the North, they must not 
think hardly of me if I say that from time to time things are 
done in some parts of the South that the states ought to pre- 
vent, and if they do not, that the country must prevent the 
moment they touch the Constitution of our Government. 



282 GOVERNMENT AND CITIZENSHIP 

It is true that in the state of New York we cannot afford 
to be without the safeguard always standing back of our 
poHtical procedure of power in the nation to compel purity, 
fairness, honesty. No state can afford it; no state. North 
or South, can afford it; and, above all, loyalty to the nation 
cannot afford it. 

Mr. President, it is true that this resolution would leave in 
the Constitution that provision which makes each house the 
judge of the elections and qualifications of its members; but, 
sir, it would rob this house of the power to require the regu- 
lations regarding the elections of members to be such that we 
could exercise the power of judging of the elections. 

Sir, we found it necessary in 1842 to change the method of 
electing Congressmen. We found it necessary in 1866 to 
reach out our hand and change the methods by which the 
state legislatures were electing members of the Senate. 
With that experience before us, will gentlemen tell us that 
never in the long process of time is it possible that it will 
be requisite for the National Government to reach out its 
hand and in order that the election of Senators shall be 
so conducted as to make it possible to perform the duties of 
government in judging of their election, to control and direct 
and modify the regulations under which they are elected ? 

It is true, Mr. President, that the fourteenth and fifteenth 
amendments will still remain in the Constitution, but, so far 
as those amendments affect the exercise of the power of the 
states or of the individual voters in the states to constitute a 
member of this body, the second part of this resolution would 
rob the Government of the United States of the power to 
make those preliminary dispositions regarding elections 
necessary for the enforcement of the amendments. 

There has been some discussion here as to whether the 
amendment offered by the Senator from Utah [Mr. Suther- 
land] proposed the granting of a new power to the National 



DIRECT ELECTION OF SENATORS 283 

Government over the elections in the state or whether the 
resolution proposed by the committee provides for taking 
away an existing power. 

Let me state what I think it is. As the Constitution now 
stands, Senators are elected by legislatures whose proceedings 
are under the control and regulation of the national Con- 
gress. The resolution proposes to transfer the power of 
election from the legislatures to the popular electorate with- 
out extending to the new electorate that power of national 
control. The Sutherland amendment proposes to carry over 
to the new body of electors the same control which the present 
Constitution attaches to the existing power of electors. 

Now, Mr. President, we are told that that is too high a 

price for the South to pay. The Senator from Mississippi 

[Mr. Percy] has said to us: 

Notwithstanding the suggestions of the Senators from New York and 
Montana, the day may be far distant, if it will ever come, when any politi- 
cal party will again find it expedient to attempt to enact Federal laws for 
the supervision of elections. But this optimistic hope furnishes no safe 
reason for extending the power of the Government as to the enactment of 
such laws, and I would not be dealing in frankness with our Repubhcan 
allies, who are supporting us in this measure, and for whose patriotism and 
earnestness in the support of it I have the profoundest respect, if I did not 
say to them that in my judgment the extension of the power of the Federal 
Government, as required by the Sutherland amendment, is a price greater 
than the South is willing to pay for the election of Senators by the direct 
vote of the people. I have no hesitancy in saying that it is a price greater 
than it should pay. 

Mr. President, I beg leave to say to the Senator from 
Mississippi and to his Republican allies, from a heart full of 
sympathy with all measures of conciliation between the two 
parts of the country, that the time has not yet come when the 
people of this nation are entering the market-place to buy 
from them or from any of them the right to preserve and 
protect by the exercise of our own national power the 
Government of the United States under its Constitution. 



\ 



ELECTION OF SENATORS BY DIRECT 
VOTE 

ADDRESS IN THE SENATE OF THE UNITED STATES, MAY 23, 1911 

THIS subject has been very fully debated, and I do not 
wish to occupy the time of the Senate by going over the 
same arguments that I myself have already made or by 
repeating the arguments of others. I do wish, before the 
vote is taken, to state the position I take and the views 
which influence me to vote as I shall vote. 

I shall vote for the substitute offered by the Senator from 
Kansas [Mr. Bristow], and I shall then vote against the 
proposition to amend the Constitution. I shall vote for the 
substitute because it strikes out from the proposed amend- 
ment the amendment of section 4 of Article I, and I shall vote 
against the proposition as a whole because I am opposed to 
the amendment of section 3 of Article I. 

There are two separate, distinct, and independent amend- 
ments of the Constitution included in the joint resolution as 
reported by the Committee on the Judiciary. One is an 
amendment to section 3, so as to provide for the election of 
Senators by the people instead of their election by the state 
legislatures. The other is an amendment of section 4 of 
Article I, so as to take away from the Congress of the United 
States the power to make or alter the regulations which may 
be prescribed by the several state legislatures in respect of 
the choosing of Senators. 

The second amendment — that is to section 4 — is wholly 
unnecessary to the effectiveness of the first amendment, 
relating to the election of Senators by the people. There is 
no occasion whatever to destroy the power and authority 

285 



286 GOVERNIMENT AND CITIZENSHIP 

of the Government of the United States over the process of 
constituting its own legislative body, in order to secure the 
change of election from a state legislature to the people of 
the several states. It is a new, additional, independent, 
disconnected, and unnecessary amendment to the Consti- 
tution. It has no place in the deliberations of this body 
or of any body upon the change in the manner of electing 
Senators. A change from the election by the legislature to 
an election by the people can be made with or without the 
other amendment, and wholly unaffected by it. 

The people of the United States may wish for one and may 
not wish for the other. They ought not to be compelled to 
vote for one, which they may not wish for, as a condition of 
securing the other, which they may wish for. Each should 
stand upon its own basis. The people of the country should 
have an opportunity to vote to change the manner of the 
election of Senators, if they wish for it, without being com- 
pelled, as the price of getting it, to vote for the destruction of 
that control which the National Government has had from 
the beginning over the constitution of this great branch of 
the national institution. 

I believe that the adoption of this amendment to section 4, 
which takes away the power of Congress to make in the last 
resort, if it finds it necessary, regulations to secure the effec- 
tive, the honest, the uncontrolled selections of members of 
the Senate, would be a reversal of the theory of the Constitu- 
tion. I beheve that it would strike a blow at that power of 
independent self-support which is essential to the perpetuity 
and the effectiveness of government. I beheve that it would 
be a reversion to the theory of the old confederation, under 
which the Government of the United States was dependent 
upon the states, and an abandonment of the theory of the 
Constitution under which we live, which was that the Gov- 
ernment of the United States should stand erect and self-sus- 



DIRECT ELECTION OF SENATORS 287 

taining and have all the powers necessary for the maintenance 
of national life, dependent upon no state, upon no state 
legislature, and upon no power whatever except the power of 
the nation itself. . . . 

We have had occasion to exercise the power of regulation 
both in regard to the election of members of the House of 
Representatives and in regard to the election of Senators. 
Congress in 1842 passed a statute to regulate the election of 
members of the House. It was found necessary in order to 
have effective and proper elections. It has passed repeated 
statutes since then, notably in 1872, and our elections are 
being conducted now under those statutes passed by the 
Congress. Congress has found occasion to regulate the elec- 
tion of Senators, and those elections are being conducted now 
under the statute passed in 1866. No man can say that the 
time will not come again when it will be necessary for the 
Congress, in order to secure uniformity, in order to secure 
effectiveness, in order to prevent abuses, to exercise its power 
in respect of regulating the times and the manner of electing 
members to each House of the national legislature. 

But it was not my purpose, as I have already stated, to 
re-argue this case. I have stated the substantial grounds 
upon which I prefer that the substitute offered by the Senator 
from Kansas shall take the place of the original joint resolu- 
tion. I shall oppose the resolution, then, on the ground that 
I think it is inexpedient and unnecessary to make any amend- 
ment of the Constitution at all in regard to the election of 
Senators. I believe that it will result in a deterioration of the 
personnel of the Senate. I believe that it will keep out of 
the Senate a large and important element well adapted to the 
performance of the peculiar and special duty of the Senate 
in our system of government. I believe that all the abuses 
which have led to such a desire for this change on the part of 
the people of the country can be cured by a simple amend- 



288 GO\^RN]MENT AND CITIZENSHIP 

ment of the law, by amending the statute rather than by 
amending the Constitution of the United States. 

Such a step I have already introduced. It was introduced 
at the last session and favorably reported by the Committee 
on Privileges and Elections. It has been introduced again at 
this session and is now pending before the Committee on 
Privileges and Elections. It provides for the election of 
Senators by a pluraHty, which is something that would be 
inevitable if we transfer the right of election from the legis- 
latures to the people. It cures the evils which we have had 
by a simple amendment of the law. It affords an opportu- 
nity for a majority rule to control for a period which is stated 
in the bill as introduced at twenty days, after the first con- 
vening of the two houses of the legislature. After the opera- 
tion of twenty days has failed to produce an election by the 
majority rule, it provides for the appHcation of a pluraHty 
rule. 

I fully recognize the fact that we have going on throughout 
a large part of the country a process of change, a process of 
experiment in the way of modifying our governmental 
institutions. I recognize the fact that the people of many 
states have become dissatisfied with the way in which their 
poHtical machinery has acted and that they desire to change 
it. I have great sjTnpathy with the feeling and take great 
interest in the experiments that are being tried. I beheve 
that good will come from the awakened interest of the people 
of the countrj^ in their own poUtical affairs and from their 
determination to take a part in their affairs and to make 
their will effective. 

But it is a process of experiment. We cannot change the 
institutions of more than a century without long trial and 
consideration. Experiments will fail; experiments will not 
succeed. All of us will see opportunities for modification and 
improvement. No one of us can evolve from his own thought, 



DIRECT ELECTION OF SENATORS 289 

not all of us together can by conference produce results 
which we may feel sure are better than the methods devised 
by the framers of our Government, until the results have 
been put to the test of practical apphcation. 

The system under which we live has produced the best 
results that ever have come from the experiments of mankind 
in government. We have received from our present institu- 
tions manifold blessings, and in the providence of God have 
wrought out under those institutions results which have made 
for the happiness, for the liberty, for the advancement of all 
mankind. With all history strewn with the wrecks of govern- 
ment, with human nature still unchanged, I would hesitate 
long before assuming that my own judgment, or the judgment 
of all of us, can improve the system and framework of our 
Government, except upon experiment and demonstration by 
practical application. 

I do not like to see experiments begin or proceed in their 
early stages by amendments to the Constitution in advance 
of their being tried out fully. Amendments should be the 
result of long deliberation and trial. They should not initiate 
deliberation and trial. 

For these reasons, I shall take the course regarding the 
substitute and the joint resolution which I have indicated, 
whether the substitute be adopted or not. 



THE CASE OF SENATOR LORIMER 

ADDRESS IN THE SENATE OF THE UNITED STATES 
FEBRUARY 3, 1911 

William Lorimer, of Illinois, after serving seven terms in the House of Represen- 
tatives, was elected United States Senator from Illinois by the legislature of that 
state. May 26, 1909, for the term 1909-1915. 

Mr. Lorimer took his seat June 18, 1909, and on June 20, 1910, the Senate passed 
a resolution authorizing and directing the Committee on Privileges and Elections to 
investigate his election. This Committee reported December 21, 1910, to the eflFect 
that his election had not been invalidated by corrupt practices, and a minority 
report was submitted January 9, 1911. 

While these reports were under discussion, Mr. Root made the address which 
follows. 

On March 1, 1911, a resolution declaring Mr. Lorimer 's election invalid was 
defeated by a vote of 40 to 46. On June 2, 1911, the Senate passed a resolution 
appointing a special committee to investigate again the Lorimer case. The majority 
of this special committee reported in favor of Mr. Lorimer, May 20, 1912, and on 
July 13, 1912, a resolution of the minority that corrupt methods and practices had 
rendered Mr. Lorimer's election invalid, was adopted by the Senate by a vote of 
55 to 28. 

ON the twentieth of June last the Senate passed a reso- 
lution which directed the Committee on Privileges 
and Elections — 

to investigate certaia charges agaiast William Lorimer, a Senator from the 
state of Illinois, and to report to the Senate whether in the election of said 
William Lorimer as a Senator of the United States from said state of 
Illinois there were used or employed corrupt methods or practices. 

The Committee on Privileges and Elections have now 
reported, not whether there were used or employed corrupt 
methods or practices in the election of William Lorimer, but 
that, in their opinion, the title of Mr. Lorimer to his seat in 
the Senate has not been shown to be invalid by the use or 
employment of corrupt methods or practices; and the com- 
mittee request to be discharged from further consideration 
of the resolution. 

It is a fair inference, from a comparison between the terms 
of the resolution and the report of the committee, that the 



292 GOVERNMENT AND CITIZENSHIP 

committee were of the opinion that there were corrupt prac- 
tices used and employed in the election of Mr. Lorimer, but 
that the legal effect of such corrupt methods and practices 
was not such as to invahdate his election. That view of the 
true meaning of the committee's report is supported by an 
examination of the testimony which was before them. 

I am constrained, upon a careful examination of the testi- 
mony, to disagree with the conclusions of the committee. I 
do it with great regret; I do it unwillingly, because I have the 
highest respect for the members of the committee and for 
their judgment. I know that they are trained and able men 
and that they are men of the purest patriotism and of a char- 
acter which makes it impossible even to discuss the integrity 
of their action. It is difficult for me to reconcile myself to 
taking a different view of the facts in this case from that 
which these trusted and honored colleagues have taken after 
hearing the witnesses; and, Mr. President, I differ from them 
with great regret, because the conclusion which I have 
reached involves the interest, and, if agreed to by the Senate 
involves the iujiuy, of a gentleman toward whom I have 
the kindliest feelings, Mr. Lorimer; involves a disgrace to the 
great state of Illinois and to the coimtry of which that state 
is so great and potent a part. But I cannot come to any 
different conclusion. 

I differ from the committee, sir, not only as to their con- 
clusion, but as to the view of the scopye and nature of their 
duties, which I beheve played a considerable part in leading 
them to their conclusion. 

The charges against Mr. Lorimer were presented to the 
committee by counsel for the Chicago Tribune. The com- 
mittee deemed it to be their duty to treat the charges from 
the beginning to the end as they would have treated a private 
complaint against a private defendant, holding the com- 
plainant to strict proof as a court would have held a private 



SENATOR LORIMER 293 

litigant, and the committee concluded that the charges had 
not been sustained. 

It is true, as the Senator from Texas [Mr. Bailey] said upon 
this floor a few days ago, that the wisdom of ages has shown 
that the best way to get at the truth of a case is to have two 
parties and to hear their testimony and their arguments; but, 
Mr. President, who has made the Chicago Tribune a party to 
an investigation of a question that concerns the integrity, the 
purity, the reputation, and the authority of the Senate of the 
United States ? When have we committed to that news- 
paper, or to any newspaper, to the owners of a paper and their 
counsel, or to any man, the guardianship of our honor and the 
preservation of the integrity of our Government ? No, Mr. 
President, when it once appeared to the committee that 
there was substantial ground for the charges, when one wit- 
ness had appeared before them and given testimony which, 
if believed, established the fact of bribery, then from that 
time, I submit to the Senate, it became the duty of the Com- 
mittee on Privileges and Elections to do what the Senate 
resolution directed them to do — to investigate the charges 
and to report to the Senate, not whether the Chicago Tribune 
had established a case, but whether in the election there were 
used or employed corrupt methods or practices. 

And, Mr. President, the case is full of opportunities of 
which a different view would have led the committee un- 
doubtedly to avail themselves to secure fuller and more satis- 
factory information upon the subject of the resolution. The 
evidence taken points clearly to avenue after avenue which 
could be followed down to probable information upon the 
subject of the resolution; but, in taking the view of their 
duty which they did, the committee logically and naturally 
excluded much information which was brought forth by 
questions put to witnesses, and which would naturally have 
opened opportunity for further information. 



294 GOVERNMENT AND CITIZENSHIP 

One effect of this view taken by the committee is a preju- 
dice — a natural prejudice — in which I confess, sir, I share. 
We have heard going about this chamber in conversation 
among Senators, bruited about through the Capitol, the 
expression of prejudice against this newspaper prosecution, 
against the method and the spirit exhibited by the Chicago 
Tribune in its prosecution of this case, which has been char- 
acterized by many persons not interested in the case as not 
merely a prosecution, but a persecution. Mr. President, I 
have said that I share that feeling regarding newspaper pros- 
ecutions. I do not think the combination of the tremendous 
power of a great daily paper and the function of a prosecuting 
officer is a combination that makes for justice. But, sir, this 
case is not the case of the Chicago Tribune', it is the case of 
the Senate of the United States; it is the case of the Govern- 
ment of the United States; it is the case of representative 
government the world over. 

Mr. Paynter. Mr. President, I should like to ask the 
Senator a question. 

The Vice-President. Does the Senator from New York 
yield to the Senator from Kentucky ? 

Mr. Root. I do. 

Mr. Paynter. The Senator is complaining of the action 
of the committee in the matter of the admission of testimony. 
I ask the Senator to state now what witnesses were at the 
command of the committee except those which were fur- 
nished by the Chicago Tribune ? 

Mr. Root. I will state that, Mr. President. 

Mr. Paynter. And in that connection I want to ask the 
Senator this question: What kind of an attitude would the 
committee have placed itself and this body in had it refused 
to have heard the testimony of witnesses who were offered by 
the Chicago Tribune ? I will be glad to hear the Senator on 
both of those questions. 



SENATOR LORIMER 295 

Mr. Root. I have not for a moment intimated that the 
committee should not have heard witnesses produced by the 
Chicago Tribune. They should have heard them; but if they 
had taken the view of their duties which I take, they would 
have called still other witnesses. I will state one now. They 
would have called the cashier of the Holstlaw Bank, of luka, 
with the books of that bank, to determine whence came the 
money that Mr. Holstlaw deposited in the State Bank of 
Chicago on July 16, 1909. They would have called the Yar- 
boroughs, whom disputed testimony put in the room with 
Mr. White when Mr. Browne was said to have come for him 
to take him to the interview in which White testified the offer 
of the bribe was made. They would have called Governor 
Deneen to testify, to ascertain what he knew about the trans- 
action regarding which Mr. Lorimer told us in the Senate — 
that Governor Deneen favored him until the day before the 
vote, and then turned. . . . 

Mr. President, the Senator is not quite accurate in saying 
that I am criticising the committee for not calling these wit- 
nesses. I am not. I am saying that the failure to call these 
witnesses is the natural and inevitable result of a view taken 
by the committee as to the scope of their duty, and that view 
is clearly and distinctly expressed by the committee them- 
selves. My only criticism, whatever criticism is involved, 
is in differing with the opinion of the committee regarding: 
First, the conclusion that they report, and second, the view 
that the report shows they take as to the scope and nature 
of their duties. 

But, Mr. President, we have here many hundred pages of 
testimony, and it is for the Senate now to pass upon the 
report of the committee with reference to the testimony as 
it is. And I beg leave to lay before the Senate such views 
as I have reached in the examination of that testimony. 



296 GOVERNMENT AND CITIZENSHIP 

The framework of the events to which the investigation 
related is familiar to all the members of the Senate. From 
January mitil May 26, 1909, the legislature of Illinois was 
engaged in fruitlessly balloting for a Senator to succeed Mr. 
Hopkins, who was then a member of the Senate. 

Mr. Hopkins had received a large vote by way of instruc- 
tion in the primaries, and Mr. Stringer was the primary 
selection of the Democratic party, and the votes ran for many 
weeks, for months, with the greater part of the Repubhcans 
voting for Mr. Hopkins, but a sufficient number of votes 
scattering about to prevent an election, and the greater part 
of the Democrats voting for Mr. Stringer. 

On the twenty-sixth of May there was a sudden change, 
and the votes of a very large part of the Republicans and of 
the Democrats were turned to Mr. Lorimer, who up to that 
time had not been an avowed candidate, only an occasional 
scattering vote having been cast for him. On that day there 
were two hundred and two members of the legislature of 
Illinois present in the joint session of the two houses, making 
one hundred and two votes necessary to an election. On the 
ballot to which I have referred, on the roll-call of the senate, 
there were ten votes for Mr. Lorimer, and on the roll-call of 
the house there were ninety-one for Mr. Lorimer, making a 
total of one hundred and one votes. Thereupon seven Repub- 
Hcan senators who had voted for Mr. Hopkins on the roll- 
call changed their votes from Mr. Hopkins to Mr. Lorimer, 
making one hundred and eight votes for Mr. Lorimer, and he 
was declared to be elected. Those one hundred and eight 
votes were fifty-three of them cast by Democrats and 
fifty-five by Republicans. 

The investigation concerns itself with the way in which 
those one hundred and eight votes were procured. It is 
practically concentrated upon the way in which the fifty- 
three Democratic votes were secured^ because it was a 



SENATOR LORIMER 297 

matter for special inquiry that fifty-three Democrats should 
leave the candidate of their own primary and unite upon a 
candidate of the opposite party. 

Now, there are certain undisputed facts which bear upon 
this inquiry as to these fifty-three Democratic votes. The 
first which I ask you to consider is that Mr. Lorimer was 
present at Springfield and in attendance at the state capital 
at the time of this election, and he had been there for several 
weeks. It appears that one of the Democrats who had been 
asked to vote for Mr. Lorimer raised some objection and was 
requested to go into the Speaker's room — this is on the day 
of the election — and see Mr. Lorimer. 

He had asked for certain promises regarding patronage, 
regarding the appointment of Federal officers in his own 
town. He was requested to go, and he did go into the 
Speaker's room, and there found Mr. Lorimer; and he had 
with Mr. Lorimer a conversation relating to the appoint- 
ment of Federal officers in his town, and it appeared to be 
satisfactory. 

Mr. Lorimer then was present in the capitol, occupying the 
room of the Speaker of the assembly, and there meeting and 
having interviews with the members of the assembly regard- 
ing their voting for him. 

The second important fact bearing upon the relation be- 
tween Mr. Lorimer's election and these Democratic votes is 
that the agent selected by Mr. Lorimer, the chief agent to 
secure Democratic votes for him, was Mr. Lee O'Neil 
Browne. Mr. Browne was the leader of one faction of the 
Democrats in the assembly. There were two factions, each 
with a leader. Mr. Browne had between thirty and forty, 
and another, Mr. Tippet, had between twenty and thirty 
Democratic members of the legislature, and Mr. Browne was 
called into consultation, conference, cooperation with Mr. 
Lorimer and became plainly Mr. Lorimer's accredited and 



298 GOVERNMENT AND CITIZENSHIP 

authorized agent in securing votes from the Democratic side 
of the assembly. 

This rests upon the testimony of Mr. Browne himself, and 
is not subject to any dispute. Mr. Browne says, after being 
asked about whether he had reported some facts to Mr. 
Lorimer: 

A. Well, now, if I was giving you my best judgment as to when I first 
spoke to Senator Lorimer personally about the matter, I would say it was 
somewhere in the neighborhood of a week. 

Q. A week ? — ^A. Somewhere. 

Q. What — and then you conferred with him frequently, did you not ? 
— A. Oh, yes. 

Q. Every day ? — A. I presume every night. The conferences were at 
night mostly. Every night during the stay Lq Springfield. 

Q. Yes. And those conferences lasted some hoiu-s, didn't they ? — 
A. Sometimes they did, and sometimes there were a dozen of them in an 
evening. 

Q. And you kept Senator Lorimer posted as to your movements with 
reference to his candidacy, did you ? — A. We all kept each other posted, 
just as any other campaign committee would do. 

Q. Well, I am asking you whether you kept him posted as to your 
movements with reference to his candidacy ? — A. I have answered that. 

Q. Well, did you keep him posted .'* — A. We all kept each other posted. 

Q. What I want to know is, did you tell Mr. Lorimer, the candidate for 
United States Senator, as to what you were doing toward furthering his 
candidacy ? — A. I presume I did. 

It further appears that Mr. Browne had made a condition 

of bringing his followers to the support of Mr. Lorimer, that 

none of them should be expected to vote for Mr. Lorimer 

untn there was satisfactory assurance that the votes would 

be sufficient to elect. Mr. Browne says: 

Q. So you insisted that no Democrat should vote for Mr. Lorimer until 
you were advised that there should be enough votes, outside of the Demo- 
crats, with them, to elect him ? — A. Well, I insisted, and I made it a 
matter of honor, with both of them — 

Mr. Lorimer and Mr. Shurtleff — 

that no roll-call for Mr. Lorimer's election should be started, and that I 
would not consent to a single one of my followers voting for him imtil I 
became sure that there were enough with those to elect him. 



SENATOR LORIMER 299 

He is asked now: 

Q. Now, what did you do, if anything, to notify the men who belonged 
to your faction, who you believed would vote for Mr. Lorimer, that the 
vote would be taken on the twenty-sixth ? — A. Well, I cannot say to 
you, Senator, just what course I pursued with every one of them. I know 
the message was carried in one way or another to each one of them that the 
roll-call would be put on the next day for his election, and that it was going 
to go through. 

Q. You set in motion some machinery by which all of your friends 
who you believed would vote for Mr. Lorimer — I believe you said 
thirty — were notified that it would be called off on that day, so that all of 
them would be on hand, and it would be called off on that day, the twenty- 
sixth ? — A. Well, all of them were on hand those days all of the time. 
Senator. 

Q. You notified them that the ballot would be taken on that day ? — 
A. Yes. 

Q. Or had it done ? — A. Yes. 

Q. So that they might be present ? — A. Yes. 

I say the testimony, undisputed and unquestionable, 
leaves no doubt of the relation of agency between Mr. 
Browne and Mr. Lorimer in the securing of the Democratic 
votes, or at all events the thirty Democratic votes cast by 
followers of Mr. Browne and constituting a part of the one 
hundred and eight votes that elected Mr. Lorimer. 

The relation of Mr. Browne as leader of these thirty voters is 
very well shown by his own testimony, which I will now read: 

Q. As minority leader, I suppose your vote would be taken as a criterion 
on strictly party questions, to those who should follow you, as to party 
policy in voting .'' — A. Well, in this transaction I might say the bell- 
wether, so to speak, was Manny Abrahams — Emanuel Abrahams. He is 
the first on the list, you will see, the first Democrat; and he was a very 
strong and stanch adherent of mine, and, whether right or wrong, he be- 
lieved what I did was right, and whenever they saw Manny Abrahams — 
those that wanted to know how I was going to vote — saw Maimy Abra- 
hams vote one way, that settled it. 

Q. And he voted for Mr. Lorimer ? — A. Yes, sir. 

Q. I suppose you had an understanding with Mr. Abrahams that he 
was going to vote for Mr. Lorimer ? — A. Oh, yes; with all of them — 
with aU of them. 



300 GOVERNMENT AND CITIZENSHIP 

Q. And that was the criterion ? — A. Well, it was understood before 
the roU was called at all that morning by them all, those of my crowd. 

So, Mr. Browne, the leader of his crowd in the legislature, 
controlling the vote of Manny Abrahams, who voted as he 
wished, right or wrong, Mr. Browne, the leader of this crowd, 
voted for IVIr. Lorimer, and the crowd voted, following the 
bellwether, Manny Abrahams. He procured them to vote 
as the agent of Lorimer, secured by him to act for him, 
closeted with him by day and by night, reporting to him 
step by step, having the relation to him of a member of a 
campaign committee. 

The inquiry narrows down to the question how Mr. Browne 
secured the adherence of that thirty of the faithful of his 
crowd who followed the bellwether. How did he secure 
them ? What was his relation to them ? It is a broad question 
which furnishes, when answered, a background against which 
aU the testimony in this case must be considered and weighed. 

The air of Springfield at the time was full of suspicion as to 

the way in which Mr. Browne controlled his crowd, as to the 

way in which Democratic votes were being secured. A 

stanch old Democrat, a Mr. Donohue, who was a member of 

the house and who did not vote for Mr. Lorimer, but stood 

by his party candidate, testified in explaining some remarks 

that he may have made, some questions that had been put as 

to the suspicion that there was bribery, and he said : 

That was the general talk, and I could not trace it down; I could not 
tell now who said it, and then that kind of died away, and then after the 
election of Mr. Lorimer the thing started again that they were — evjery- 
thing was not straight down there at Springfield with reference to the 
election of United States Senator, And everybody, I think — I was sus- 
picious myseK about the way things went down there. Of course, I didn't 
have any direct evidence, only from general appearance, I could not see 
why so many Democrats were going over in a body to vote for a Republi- 
can. They may have had reasons, and be more hberal in their views than 
I am, and might have gone over. I could not see it that way. I am a 
Democrat, and I am a pretty strong partisan. 



SENATOR LORIMER 301 

Of course suspicions are not evidence, but Mr. Donohue's 
view, taken at the time of this transaction, is evidence that an 
honest Democrat who was there saw no party policy or prin- 
ciple which was sufficient to accoimt in his mind for the votes 
of these fifty -three Democrats for a Republican Senator. If 
there were motives of patriotism or policy actuating the 
fifty-three, they were motives locked in their own bosoms and 
not apparent to the other Democrats who were there. 

On the floor of the assembly, on the day of the election 
before the vote was cast, Mr. English, a member of the 
house, in effect charged corruption. 

Mr. Browne, for the apparent purpose of strengthening his 
followers, had made a speech in which he had undertaken to 
explain what was about to be done, and he had used the 
expression " we cannot cash dreams", when that stout 
Democrat of the house retorted, " but you can cash votes ", 
and it was under the aspersion of that remark in the open 
house that the votes were cast. 

Mr. Groves, a reputable and unimpeached witness, testi- 
fied that shortly before the election a former member of the 
legislature came to his room in the hotel, approached him 
upon the subject of voting for Mr. Lorimer, and said to him: 
" It might be a good thing for both of us.*' Groves retorted 
that " there is not money enough in Springfield to buy my 
vote for Lorimer "; and he denounced him with such indig- 
nation and vehemence that the visitor exclaimed against his 
talking so loudly with the transom open. Groves exposed 
that on the floor of the assembly before the election. 

Mr. Groves testifies also to a conversation before the elec- 
tion with Mr. Shaw, one of the men who voted for Mr. Lori- 
mer, who was then about to vote for Mr. Lorimer, in which 
Mr. Groves, his suspicions excited by the attempt made upon 
him, put the question to Mr. Shaw, how much there was in it 
to vote for Lorimer. Mr. Groves testifies that Mr. Shaw said 



302 GOVERNMENT AND CITIZENSHIP 

there was a thousand dollars in it, as he understood, for the 
men who would vote for Mr. Lorimer. 

Mr. TerriU, an unimpeached and reputable witness, who 
did not vote for Mr. Lorimer, testifies to this: 

A. Well, Mr. Griffin, a member of the house also; I think he comes 
from Cook County, but I don't remember what district. He never made 
me any offer of cash. He asked me to vote for Mr. Lorimer. I asked him 
what there would be in it, and he said, " A thousand doUars, anyway." 

Mr. Griffin was one of the faithful thirty that followed the 
bellwether, and Mr. Terrill told of that approach, of that 
assault upon his integrity. 

Mr. Meyers, another member of the house who did not 
vote for Mr. Lorimer, testifies that Mr. Browne asked him to 
vote for Mr. Lorimer. Mr. Browne himself, the agent whose 
relations to this vote we are inquiring about, asked him to 
vote for Lorimer: 

Q. Will you tell the committee what, if any, conversation you then had 
with Mr. Browne ? — A. I went down to his desk and sat down on a chair 
right beside him, and he says: " We are going to put this over today, and I 
would like you to go with us." I says : " Lee, I can't do it." 

Q. What else ? — A. Then he says that there are some good state jobs 
to give away and the ready necessary. I says : " I can't help it; I can't go 
with you." 

Q. " The ready necessary," that is correct, is it, that I repeat ? — 

A. Yes, sir. 

Mr. Meyers, being interrogated further, said: 
Mr. Austrian. What did you imderstand that Mr. Browne meant 
when he said " plenty of the ready necessary " ? 

The Witness. I suppose he meant money; I did not know what else. 

So, Mr. President, I say that at the time these votes were 
east the air of Springfield was murky with suspicion of cor- 
ruption, a suspicion now justified by the testimony of these 
imimpeached, honorable, credible witnesses, of attempt after 
attempt upon the integrity of the members of the Democra- 
tic party in the assembly of Illinois, including this attempt by 
Lee O'Neil Browne in person. 



SENATOR LORIMER 303 

Mr. Holstlaw, who was a senator, testified that Senator 
Broderick, a Democratic senator, as was Holstlaw, assured 
him that there was $2,500 in it for him if he voted for Lori- 
mer, and he did. Holstlaw has also testified to the payment 
of the $2,500. I shall discuss the testimony regarding that at 
a later period. 

Three other witnesses have testified not merely to ap- 
proaches, but to the actual payment of money. Mr. White, 
who was the originator of the charges, Mr. Link, another 
Democratic member of the assembly, Mr. Beckemeyer, 
another, all members of the faithful thirty. 

Mr. President, it may be that all these men swore falsely. 
It may be that White, and Link, and Beckemeyer, and Holst- 
law, and Meyers, and Groves, and Terrill all perjured them- 
selves. But we are not at liberty to reject their testimony 
unless it is overcome by countervailing testimony of sufficient 
weight or unless it is found to be at variance with the true 
and accepted facts. And the great fact against which all of 
this evidence is to be considered, that furnishes the back- 
ground for all these events, is this fact of the relation of Lori- 
mer's agent, Browne, to his followers, and that fact, that 
underlying fact, which will either corroborate or contradict 
all these oaths, is established not only by a preponderance of 
evidence, but beyond that reasonable doubt which is per- 
mitted to stand in the way of a verdict that may cost a 
defendant his liberty or his life. 

It happens, Mr. President, that there were two events — 
two meetings of followers of Browne — subsequent to the 
election of Lorimer in which the testimony fixes the pay- 
ment of money, under such circumstances that, if the testi- 
mony be believed, there was plain bribery. The first meeting 
was on the twenty -first of June following the election. The 
second meeting was on the fifteenth of July. Both meetings 
were held in St. Louis. At the first the testimony of Becke- 



304 GOVERNMENT AND CITIZENSHIP 

meyer and White and Link shows a distribution of a thou- 
sand dollars each to the followers of Browne in southern 
Illinois, and at the second meeting, the fifteenth of July, the 
testimony of the same men shows a distribution of $900 each 
to the followers of Browne in southern Illinois. 

Mr. Browne has testified that there were three meeting 
places where his crowd was in the habit of being called to- 
gether — those of northern Illuiois, in Chicago; those of 
central Illinois, in Springfield; and those of southern lUinois, 
in St. Louis. At the meeting on the fifteenth of July, when the 
$900 dividend was made, all the members of Mr. Browne's 
following in southern Illuiois were present, having been sum- 
moned to that meeting by telegrams sent to them through 
Mr. Browne's private secretary or stenographer, IVIr. Giblin. 

The testimony of Link and Beckemeyer and White to the 
payment of the $900 to each is disputed. It is disputed only 
by the testimony of Mr. Wilson, who went to that meeting for 
Mr. Browne, ui IVIr. Browne's place. The testimony is cor- 
roborated, however, by several very important and indispu- 
table facts. Of course, it is the testimony of three men 
against one; it is the testimony of three men who say they 
received the money against one who says he did not pay it. 
But it appears in the testimony that a year after the meeting 
was held, and when inquiry came to be made regarding the 
payment of money to these members of the legislature at that 
meeting, a false and fictitious and manufactured explanation 
of the piupose of the meeting was made up. Two of the 
members who were there testified to Wilson's, who went there 
as Browne's agent, and, they say, distributed the money, 
sending them letters in 1910, on the eve of the inquiry, dated 
back prior to July 15, 1909, and suggesting as a reason for the 
meeting a proposal to give a banquet to Mr. Browne. 



SENATOR LORIMER 305 

Unfortunately, nearly all the witnesses to the meeting for- 
got that there was any proposal to give a banquet to Mr. 
Browne. All the members of the Browne following met at 
their customary meeting place in St. Louis, brought from 
their several homes in different and distant towns in the 
southern part of the state of Illinois, called there by tele- 
grams for some purpose or other, and there appears in the 
testimony regarding that meeting no evidence whatever as to 
any conclusion reached, any question raised, or any action 
taken regarding the giving of a banquet to Mr. Browne. 

It appears further in the testimony that there had been 
something said about a banquet to Browne, and that Browne 
had stamped on it or frowned on it, as Mr. Wilson, his agent, 
testifies. It further appears that that meeting was a meeting 
intended for these followers to meet Browne himself; and, of 
course, it could not have been a meeting for the purpose of 
considering giving him a banquet to which he was opposed. 
It is improbable that Browne should have had his followers 
called together to meet him for the purpose of considering the 
giving to him of a banquet against his will. 

I say that the meeting was for the purpose of meeting 
Browne, and I will refer to some of the testimony. Mr. 
White has testified that Browne had said he would meet him 
in July on the fifteenth, and Mr. Wilson went down to that 
meeting, the testimony shows, and told the rest of the crowd 
who met there that Browne was ill with ptomaine poisoning, 
so that he had to come in his place. Here is a letter from 
Browne. I beg your careful consideration of it, for it is the 
letter which shows with great distinctness the relation of 
Browne to this meeting, regarding which the faked and 
manufactured explanation was gotten up the next year, and 
in which the testimony shows that bribes were paid. 



306 GOVERNMENT AND CITIZENSHIP 

TT , , ^ * tur Ottawa, III., Jvly 16, 1909. 

Honorable Charles A. White, 

O'FaUon, Dl. 

Friend Charlie: Thank you very much for your prompt recognition 

of my request in the Doyle matter. You have certainly been one of my 

good old friends since we have become acquainted. I feel sure that the 

friendship will last just as long as you and I do. I was awfully sorry that I 

was unable to be with you yesterday forenoon in St. Louis. I was taken 

very ill in Chicago Monday night with an attack of ptomaine poisoning 

and have had a pretty serious time of it. I did not dare to attempt the 

trip. I hope everything is all right with you and satisfactory and that you 

are happy and fairly prosperous. I hop)e before very long to be able to 

meet you either in St. Louis or Chicago and talk over old times. I think 

you and I have got one real good visit coming. Let me hear from you 

when you get time and the spirit moves you. 

Very sincerely, your friend, ^^ q,-^^ Browne. 

I say that letter completely corroborates the testimony 
that the meetmg of July fifteenth, m St. Louis, was a Lee 
O'Neil Browne meeting with his followers in southern Illinois, 
to which Wilson went as his locum tenens; and when you 
consider the fact that three of the men present at that meet- 
ing have sworn to the distribution of a fund, out of which 
they received $900 each, I beg you to consider this language 
of the letter which Browne writes to his friend White: 

I hope everything is all right with you and satisfactory — 

There is another fact, Mr. President, which corroborates 
most powerfully the testimony showing that there was money 
paid, a fund distributed at the July fifteenth meeting; and 
that is that two of the men who were there, when called 
before the grand jury of Cook County in an inquiry as to 
legislative corruption, testified under oath that they were 
not present at the meeting — perjured themselves to conceal 
the fact that they were there at all. They were indicted for 
that perjury. Why, if the meeting was an innocent one, if it 
was a meeting to talk about a banquet, if the testimony of 
these three men that there was a fund distributed there is 
false, and it was an innocent meeting, why should men be 



SENATOR LORIMER 307 

willing to commit perjury in order to conceal the fact that 
they were there ? 

Ah, no, Mr. President. The corruption in the legislature 
of Illinois which brought on the distribution of July fifteenth 
was practically admitted upon this hearing. When the first 
testimony about that meeting was produced the counsel for 
Mr. Lorimer objected to it because, he stated, it was testi- 
mony about what they called the ** jack pot." Mr. Presi- 
dent, the corruption in that legislature had continued so long, 
men's minds had become so accustomed to believing in it, 
men had become so callous to the iniquity of it, that they 
joked about it and nicknamed it as if it were a matter for 
jocular treatment. Several of the witnesses testified that 
they called it a '* jack pot." The committee in their report 
say — 

If any money was disbursed by Wilson — 

that is, at this July meeting — 

If any money was disbursed by Wilson, it is evident that it was from a 
fund which was neither raised nor expended to promote the election of Mr. 
Lorimer as a Senator nor to reward those who voted for him for that oflBce. 
It was therefore no part of the duty of the sub-committee to inquire into 
either the origin of the fund or the piupose for which it was used. 

That finding is in accordance with the contention of the 
counsel for Mr. Lorimer that there was corruption; that all 
of these followers of Mr. Browne in southern Illinois were 
called together on the fifteenth of July, and a corruption fund 
was divided among them. 

The distinguished senior Senator from South Dakota [Mr. 
Gamble], a member of the sub-committee which took the 
testimony, with that frankness and intellectual integrity that 
always characterize him, stated to the Senate what is the 
indisputable and unquestionable fact relating to the tie that 
bound Browne and his followers together. The Senator from 
South Dakota said: 



308 GOVERNMENT AND CITIZENSHIP 

Mr. President, it has been my purpose to state the evidence given before 
the committee fairly as to bribery or corrupt practices as affecting the 
integrity of the votes cast for United States Senator. I am not here to give 
countenance to or to approve the proceedings, the record, or the methods 
puLrsued in the legislature of the state of Illinois. The evidence is uncon- 
tradicted that a system of corruption and malfeasance has been practiced 
for many years in the legislature of that state. It appears money has been 
coerced and received by members of the legislature for unla\vful and un- 
worthy purposes. Money appears to have been demanded and received for 
the promotion or defeat of legislation, irrespective of its merits, and the 
fimds so secured have been held and retained and the sum distributed to 
members of the legislature after adjournment. 

Again, the Senator from South Dakota said: 

The evidence, it appears to me, was overwhelming from many witnesses 
upon the stand, both directly and indirectly, that the matter of the " jack 
pot " had been in existence and in operation for some years. It apjiears to 
have been reduced in its operation practically to a system. I had never 
heard or learned of its being inaugm-ated elsewhere to the extent that funds 
raised and paid to effect legislation irrespective of its merits were held and 
pooled, and later distributed after the close of the legislative session. 

And further, in answer to an inquiry, he said: 

Because, as I have said, the existence of a " jack pot " fund was testified 
to by many witnesses, and very early in the hearing its existence was prac- 
tically admitted, as far as it could be, by the respective coimsel upon either 
side in the case. 

Mr. President, it appears, upon uncontradicted and indis- 
putable testimony in this case, that the collector, the distrib- 
uter, the leader in this corruption of the legislature of 
Illinois was Lee O'Neil Browne. He was the man in whom 
centered agreements for the payment and who held the f imds 
paid; and the vote for which the payments were made fol- 
lowed the bellwether, who voted as he knew Browne wished 
him to vote, right or wrong. Browne was the distributer, and 
the ptomaine poisoning which, to his great regret, prevented 
him from meeting his followers in southern Illinois on the 
fifteenth of July, was all that led to Wilson's distributing 
the money instead of Browne's distributing it himself. This 



SENATOR LORIMER 309 

was the agent in whose hands was placed the securing the 
votes for Mr, Lorimer. 

I fully agree with the expressions that we have had as to 
the character of Mr. White, who made the original charges. 
I do not know anything baser than his conduct. His char- 
acter was such that it seems quite impossible that any man 
should be mistaken about it. I would not believe him, un- 
corroborated. But I beg the Senate's attention to the fact 
that this case is full of testimony to the effect that Lee O'Neil 
Browne was an intimate, warm, personal friend and boon 
companion of White; and one of the things which goes to 
blacken the character of White is his intimacy with the arch 
comiptionist of the Illinois legislature. I have read you one 
letter from Browne to White, in which he accounts for his 
failure to attend the meeting of July fifteenth. Let me read 

you another: 

Ottawa, III., September 9, 1909. 
Friend Chahles: Just got your letter. Am awfully sorry for you, old 
pal, because I know how true a good fellow and gentleman you are. Your 

fault, old pal, is in trying to go too fast. You must cut it out for 

awhile, old boy. I'll do all I can to land you in a job, but do not yet know 
when Lorimer will be able to do anything, or, rather, when he will do any- 
thing. But I'll do all I can, Charlie. Am pretty hard up myself after the 
vacation we all had, but have managed to scratch out a fifty for you. Hope 
it will do some good, anyway. I am down at the " grind " again, working 
like a slave. It's sure h-1 after the " music and flowers " we had for a time 
this summer. But when a thing has got to be done, I can always shut my 
teeth and go to it. It's the only way. It's hell, but that's the price one 
pays for most of the pleasure of life. I always did, at least. Good-by, old 
man, and God bless you. Wish I could do more for you. 
Your friend, 

Lee O'Neil Browne. 

Mr. President, White and Link and Beckemeyer all have 
sworn that on the twenty-first day of June Mr. Browne paid 
to them $1,000 each, and two of them testify to that payment 
being pursuant to promises made by Browne to them before 
the election of Lorimer. Are we to reject that testimony ? 



310 GOVERNMENT AND CITIZENSHIP 

Upon what ground are we to reject it ? It is opposed by the 
testimony of Lee O'Neil Browne, who certainly upon this 
record stands on no higher plane than White, his intimate 
friend. Upon what ground are we to reject the testimony of 
these three witnesses and accept the testimony of Lee O'Neil 
Browne, which we already know to be false, because he 
denies, denies under oath, denies, as we know, falsely, the 
disposition of the jack pot. The division of July fifteenth he 
denies equally with the division of June twenty-first. We 
know his oath is false, and are we to take it, proved to be false 
as to one of those two distributions, and assume it to be true 
as to the other ? 

Mr. President, the best test as to the credibihty of human 
testimony is its conformity to the known facts and the 
accepted rules of action of human nature. The relation 
between Lee O'Neil Browne and his followers is proved to 
be the relation of corruption. The leadership of Lee O'Neil 
Browne over his followers, by which he brought them to vote 
for this candidate of an opposite poKtical faith, is shown, 
beyond the possibility of dispute, to be a leadership founded 
upon the inveterate custom of following his vote and dividing 
the proceeds of the bribery of which he was the collector and 
distributer. 

Put that fact, the great salient fact of the case, by the side 
of the testimony of these unimpeached witnesses, showing 
that methods of bribery regarding Lorimer were being fol- 
lowed; the testimony of Groves and of Terrill, and of Meyers, 
who was approached with a suggestion of a bribe by Browne 
himself — put those together, those specific facts, and this 
general relation of Browne to his followers, and what are the 
probabihties .'* Will any man in his inner belief resist the 
conclusion that Browne exercised his control over his fol- 
lowers for Lorimer just as he exercised it in ordinary matters 
of legislation ? Can any man resist that belief ? 



SENATOR LORIMER 311 

Mr. President, we cannot make a finding based solely upon 
a belief of that kind. We may have a moral certainty, but we 
cannot vacate a seat in the Senate on a moral certainty. But 
when there is a moral certainty derived from a course of con- 
duct and the character of men; when there is a moral cer- 
tainty that there has been corruption, and there is also 
specific and direct evidence of the corruption, we are not at 
liberty to reject that evidence. There can be no corrobo- 
ration of human testimony stronger and more compelling 
than what we know of the character of Browne, of the 
business he was engaged in, of the method and source of 
his control over his followers — I say there can be no 
stronger corroboration than that knowledge, to the testi- 
mony of Meyer and Groves and Terrill and to the 
testimony to specific acts of accomplished bribery by 
White and Link and Beckemeyer. 

There is one other circumstance which is a little aside from 
the main current of this sewer which we have been consider- 
ing, and that is the bribery of Holstlaw. Mr. Holstlaw was, 
prior to the meeting of the assembly of Illinois of 1909, in 
which he was a senator, a reputable man, of good standing in 
the community in which he lived. He was a small banker 
in the town of luka. 111. He testifies that Mr. Broderick, 
another Democratic senator in the legislature of Illinois, who 
was a saloon keeper in Chicago, spoke to him about voting 
for Lorimer, and said to him that there was $2,500 in it for 
him if he did. 

He testifies that about the sixteenth of June, or just before 
the sixteenth of June, he was sent for by Mr. Broderick to 
come to his place of business in Chicago. He testifies that 
was either by letter or telegram, and that he went there; that 
Mr. Broderick handed him $2,500 in a package and he took 
it and went away, Broderick at the same time telling him 
there would be more for him later. 



312 GOVERNMENT AND CITIZENSHIP 

He went away, and he went to the State Bank of Chicago 
and deposited this $2,500 in the name of his bank, the Hoist- 
law Bank, of luka. The cashier of the State Bank of Chicago 
was called, and he testified that Holstlaw did on that six- 
teenth day of June deposit this $2,500 in bills to the credit of 
the Holstlaw Bank. Broderick's testimony is the only testi- 
mony in opposition to this evidence given by Holstlaw and by 
the bank cashier, the bank clerk. Mr. Broderick admitted 
that Holstlaw was at his saloon on that day. It is admitted 
that Holstlaw never was there before. It is admitted that he 
never was there again except once when soon afterwards, the 
following month, Broderick sent for him again and he came 
in and Broderick gave him $700. He never was there before. 
He never was there again. He had no business there. He 
had no business there at all, unless it was to receive this 
money. No occasion for his going there for the first and last 
time in his life is suggested unless it was that. 

Mr. Broderick was called as a witness. He denied that he 
paid Holstlaw any money on either occasion; but when an 
attempt was made to cross-examine him, the moment that the 
questions pointed to any fact in which he might be detected 
in falsehood, he refused to answer, upon the ground that he 
would be compelled to give testimony against himself — 

Mr. Gamble. Mr. President — 

The Vice-President. Does the Senator from New York 
yield to the Senator from South Dakota ? 

Mr. Root. Certainly. 

Mr. Gamble. Would it not be fair to state that the Brod- 
erick referred to was under indictment at the time ? 

Mr. Root. Oh, yes. 

Mr. Gamble. And claimed his privilege on that ground ? 

Mr. Root. Yes; he was. He was under indictment, but 
he was ready to testify far enough to deny, and he did 
not claim his privilege imtil counsel put his finger on some 



SENATOR LORIMER 313 

point where it was possible to contradict him if he swore 
falsely. 

Q. Mr. Broderick, did you ever have any occasion to write to Mr. 
D. W. Holstlaw in the month of August to call upon you ? — A. I refuse 
to answer on the same ground as I said before. 

Q. On what ground ? — A. On the same ground as I stated before. 

Q. On what ground do you refer to ? — A. That I might be compelled 
to give testimony against myself. 

Q. Mr. Broderick, when did Mr. Holstlaw come to see you .'' — A. 
Well, I don't exactly remember the date, but he was in my place when 
I came in there. 

Senator Burrows. Witness, will you speak a little louder .'' 

The Witness. All right. 

Mr. Austrian. Had he come in response to any invitation from you to 
him ? — A. I refuse to answer. 

Q. Had you any business with Holstlaw which would compel you to 
invite him or ask him to call upon you ? — A. Repeat that again. 

Q. Strike it out. Did you have any business with him which would 
necessitate his calling on you in the month of June or July ? — A. No, sir. 

Q. 1909 ? — A. No, sir. 

Q. No business whatsoever ? — A. No, sir, 

Q. If he came to see you during the month of June or July, 1909, did he 
come on his own volition or at your request ? 

Judge Hanecy. That is objected to, Mr. Chairman. — A. I refuse to 
answer; that is the same question all the time. 

Then he is asked whether Mr. Holstlaw talked with any- 
body else while he was in the saloon, and he refuses to answer 
upon the ground that it would be compelling him to give 
testimony against himself. That is the sole contradiction. 
There is the testimony of Holstlaw, a witness unimpeached 
but for these transactions; there is the testimony of the chief 
clerk of the State Bank of Chicago to the deposit of the 
money, and there is the refusal of Broderick to subject him- 
self to cross-examination upon the denial that he made as to 
the giving of the money to Holstlaw. 

Mr. President, there was a way perfectly plain to ascertain 
whether the testimony of Holstlaw as to the fact that the 
money he deposited in the State Bank of Chicago on that day 



314 GOVERNMENT AND CITIZENSHIP 

came from Broderick was true or not. There was a perfectly 
plain way either to contradict it or to corroborate it. The 
deposit was to the credit of the Holstlaw Bank, of which he 
was the owner. 

Mr. President, banks keep books. They have to do it. 
They cannot do their business without it. Somewhere or 
other in the books of that bank there must have appeared the 
source of the $2,500 which a year before this investigation 
had been deposited with the State Bank of Chicago to the 
credit of the Holstlaw Bank. They could not have kept the 
books of that bank without putting that entry in there as 
coming from somewhere, and if they put in where it came 
from and indicated some other source that would have led 
directly to an inquiry at the source from which the books said 
it came, and if the entry was false to proof of its falsity. 

But, with that plain means of contradicting the statement 
if it was false, they left untouched the testimony of Holstlaw, 
corroborated as it is, but ineffectively contradicted as it is by 
this half-way witness. Corresponding to the admitted fact as 
it does, it stands with a strength of probative effect that no 
court in Christendom would disregard, and which requires of 
the Senate to find that one vote at least, cast on the twenty- 
sixth of May for Mr. Lorimer by Senator Holstlaw, was pro- 
cured by bribery, and by bribery on the part of the late caster 
of another vote. Senator Broderick. 

This, Mr. President, is another item of corroboration of the 
testimony to which I have already referred, showing the way 
in which the votes for Mr. Lorimer were secured in the 
assembly by Mr. Browne. 

Mr. President, what is the effect of these facts plainly 
established, the fact that four of the votes cast were cast 
under the influence of money paid, and the fact that the 
money was paid by three others of those who cast the votes ? 
We are not engaged in a technical proceeding, sir. We are 



SENATOR LORIMER 315 

engaged in a proceeding where we are bound, if there is suffi- 
cient evidence, to proceed in accordance with what we really 
know to be the truth. 

I say again, however much we may believe it to be true 
that there is corruption, we cannot act upon it unless there is 
evidence, but if we do on this record really believe it and 
there is evidence, we are bound to act upon the evidence. 

Mr. President, I put it to the conscience of every Senator 
who is good enough to listen to my words whether he really 
believes that if Browne and Broderick and Wilson bribed 
White and Link and Beckemeyer and Holstlaw to vote for 
Lorimer they themselves were pure in motives and free from 
the corruption which they were trying to bring about. How 
can anybody for a moment reconcile it with his knowledge of 
human nature that that was the case ? 

Yet we cannot act unless there is evidence. But there is 
evidence. It appears first by the testimony of Mr. Meyers 
and then by the testimony of all these others that Mr. 
Browne was pursuing the same methods regarding the Lori- 
mer election that it is proved he pursued in regard to ordinary 
legislative corruption. 

It appears by the testimony of Mr. White, testimony that 
must be accepted, because it is corroborated by this great 
array of indisputable facts, that on the twenty-first of June, 
when Mr. Browne paid to him the thousand dollars and said, 
" Here is your Lorimer money ", he had a blue belt about his 
waist in which he carried a large sum of money, and that 
when White referred to it, Browne said that the day before he 
had the money m his pocket-book, and a man jostled against 
him in the street and looked as if he was angry with him. He 
said that if he had known he had jostled up against $30,000 
he would not have been so anxious to look angry. 

Mr. President, I say we are bound to accept that testi- 
mony, because it accords with what every one of us knows to 



316 GOVERNMENT AND CITIZENSHIP 

be true. Every one of us knows that with bribery attempted 
upon seven independent members of a legislature, effective as 
to four, failing as to three, but evidence of it produced, never 
in this world did it happen, or could it happen, that there 
were not others. 

So difficult is it to secure evidence of this kind of crime, so 
almost iQsuperable are the obstacles to confession and to 
testimony, that universal experience has estabHshed to the 
knowledge of us all that but a trifling, occasional, incidental 
portion of the corruption that exists, wherever it exists at all, 
is ever brought to Hght. So well is this understood that in 
England, in order that corruption might not continue to do 
its demoraHzing work in their body politic, they have made 
by law the proof of the bribery of one voter fatal to an elec- 
tion, and they have made by law the oral admission, not 
under oath, of a voter that his vote was bought evidence of 
the truth of the admission. 

The difficulties in the way of making proof where, in the 
vast majority of cases, both parties are guilty and neither can 
give evidence without stamping himself with infamy are so 
great that we are boimd to act upon the universal knowledge 
that the facts brought out here in evidence must have been 
accompanied by other similar facts; and here you have proof, 
here you have legal proof. I say, Mr. President, no Senator 
is at hberty to reject that proof which corresponds with his 
own beHef . 

It appears, also, by Mr. White's testimony that Mr. 
Browne stated at the time, as part of the res gestce^ that he 
considered himself entitled to a larger share of the corruption 
fund than the other for his risk. Here is what he said: 

He told me that he ought to have more than the other members, but he 
could not tell ..." I can't tell some of the feUows that, but I ought to 
have more than some of the other members, because I run greater chances 
and take more risks." 



SENATOR LORIMER 317 

I say you are not at liberty to reject that testimony. You 
are not at liberty, having lawful evidence to rest a finding 
upon, to reject it and proceed upon the assumption that 
every one of us will know to be false, that this professional 
corruptionist, this collector and disburser of bribes, this 
leader in the system of organized bribery, who has disgraced 
the state of Illinois for many years, was himself pure. With- 
out evidence we cannot give effect to what we know and 
believe, but with evidence we cannot reject it. 

It further appears by the testimony of Mr. White that 
Clark, one of the members of the southern Illinois crowd, as 
Browne calls them, was present at the meeting of June 
twenty-first when the Lorimer money was divided, and at the 
meeting of July fifteenth, when the jack-pot money was 
divided, but who denied it, told White then, at a time near 
enough to the events to be a part of the res gestcB, that he 
was dissatisfied with the share he had received, and told 
him that Link, one of the other men who was bribed to 
vote for Lorimer, was ready to vote for $500, but that upon 
his persuasion Link had held off, and they each had got 
$1,000. 

Mr. President, on the twenty-eighth of last May the Sena- 
tor from Illinois [Mr. Lorimer] vouched for Lee O'Neil 
Browne as a strong, high-minded. God-fearing, honorable 
man, who believed the Bible from cover to cover. I am glad 
that this record permits us to believe that Mr. Lorimer was 
mistaken in his estimate of Mr. Browne. 

But, Mr. President, he made Browne his agent. It was 
through Browne and by Browne's practices that the vote was 
secured which made Mr. Lorimer a Senator of the United 
States, and it is doing him no injustice to hold him not to 
that criminal accountability which requires knowledge and 
intent, but to civil responsibility for the consequences that 
flow from the action of his agent. 



318 GOVERNMENT AND CITIZENSHIP 

Mr. President, we here are not a court in the discharge of 
this high function; we are more than a court. There exists no 
power in any government short of an amendment of the 
Constitution of the United States to Hmit or control the evi- 
dence we shall receive or the grounds upon which we shall act 
in judging the qualification and election of a member. The 
sole limit is the hmit imposed by our own sense of what is just 
and right and for the public weal. No strict rules of evidence 
control us, no statutes declaring what shall or shall not con- 
stitute a good election. We are not a board of canvassers 
counting votes; we are a body which Congress itself cannot 
control, protecting the integrity, the purity, and the efficiency 
of this great representative body, in many respects the most 
powerful body imder representative government in the 
world. We are charged with that duty, and our own con- 
sciences and sense of justice must determine the action we 
take in the performance of the duty. The question for us to 
determine is whether, upon the whole, taking all this testi- 
mony together, the election of William Lorimer was brought 
about by corrupt practices. 

It was held by a conunittee of the Senate in the Caldwell 
case in 1873 that the payment of money to secure the 
withdrawal of a rival candidate for the Senate, through its 
indirect influence upon the subsequent voting, was sufficient 
to invalidate an election. The judgment of the Senate upon 
that proposition was prevented by the resignation of Mr. 
Caldwell. It was held by a committee of the Senate in the 
Payne case that the payment of money to the members of a 
caucus, by reason of its indirect effect upon the votes subse- 
quently cast, when no one was bought to vote in the election, 
was sufficient to invahdate an election. 

It appears to have been held in the Clark case by a com- 
mittee of the Senate that when a number of votes were shown 
to have been procured corruptly, sufficient if they had been 



SENATOR LORIMER 319 

cast for another candidate to have changed the majority, 
that that would invalidate the election. The judgment of the 
Senate was prevented in that case also by the resignation of 
the candidate. 

I make two distinct propositions as to the legal effect of 
this testimony. The first is that the deduction of the seven 
votes — I should call them in view of the Clark testimony 
eight votes — the deduction of those votes from the one 
hundred and eight votes cast for Mr. Lorimer, leaving Mr. 
Lorimer with less than a majority of all the votes of the joint 
assembly, invalidates his election. 

The Senator from Texas [Mr. Bailey], who knows very well 
my opinion of his intellectual power, for I have not hesitated 
to express it, with the accuracy of mental process that always 
characterizes him, put a question the other day on the floor 
whether it was possible to sustain the proposition that you 
can deduct the seven votes from the Lorimer vote, leaving 
one hundred and one, and not deduct them from the total 
vote cast. I answer that it is perfectly immaterial how that 
question is answered. You will perceive that if you stop 
there, as the Senator from Texas does, deducting the seven 
votes from the one hundred and eight would leave one hun- 
dred and one votes for Mr. Lorimer; deducting the seven 
votes from the two himdred and two would leave one hundred 
and ninety-five votes cast; and the one hundred and one still 
remaining of votes not proved to have been bought for Mr. 
Lorimer would be a majority of one hundred and ninety-five. 
That is the way it works out. There the Senator from Texas 
stops; but I must insist that he go with me a step further. 
Why does he deduct from the two hundred and two votes 
that were in fact cast these seven votes proved to have been 
corrupted ? Because they are corrupted. Because they are 
corrupted they are deducted from Mr. Lorimer*s column; and 
for the same reason they are deducted from the total vote. 



320 GO\^RN]VIENT AXD CITIZENSHIP 

What is it that makes Mr. Lorimer's one hundred and one 
good votes a majority ? The deduction of these seven from 
the total vote, and that deduction leaves IVIr. Lorimer one 
hundred and one votes, a majority brought about by bribery. 

What matters it whether the money that Browne dis- 
tributed was used to swell the Lorimer vote above one hun- 
dred and one, so that he would have a majority, or was used 
to reduce the total vote so that one hundred and one would 
be a majority ? Either way that the result is produced, it 
is produced by corruption. That cannot stand; or if it 
does stand, the Senate cannot stand; or if the Senate does 
stand with its members holding their places by such a tenure, 
the Government of the United States cannot stand. 

I make another proposition. It is that, without counting 
additions and subtractions of the seven specific votes, we 
have in this testimony such general comprehensive and 
indisputable proof as to the character of the entire control 
by Lee O'Neil Browne over the thirty members of his band 
of robbers, whom he led to vote for Lorimer, that we are 
bound to reject an election based upon all of them. 

Upon this record there is not one vote of the thirty that is 
entitled to be considered a pure and honest vote. Upon this 
record the whole movement of the corrupt crowd — the con- 
fessedly corrupt and venal crowd — that followed Lorimer's 
agent Browne to the vote, ought to be treated as no valid 
basis for a seat in this Senate. 

IMr. President, it is an ungracious task to urge such con- 
siderations; it is a disagreeable duty for Senators to Ksten; 
but for many years the people of the United States have been 
growing in an uneasy conviction that seats in the Senate of 
the United States have been obtained by bribery, and that, 
owing to the difficulties of securing proof, the natural unwill- 
ingness of colleagues to beHeve ill of their fellows, owing 
to whatever cause it may be, attempts to bring home to a 



SENATOR LORIMER 321 

member charged the consequences of what the people of the 
country have beHeved to be corrupt practices uniformly fail. 

It is this belief, Mr. President, that has reduced the honor 
paid to the Senate of the United States. It is this belief, 
sometimes based upon the mistaken observation of the people 
of the country whom we represent, that has been sapping the 
confidence of the people of the country in the Senate of the 
United States. This belief is one of the great considerations 
underlying the widespread demand for a change in the 
method of choosing Senators of the United States. This 
belief is one of the great considerations which are warping our 
people away from their confidence in the representative Gov- 
ernment established by our fathers. It is one of the things 
that is making them distrust the possibility of pure and 
honest representative government, and it is bringing about 
long strides toward a change in our system of government; it 
is carrying great sections of our country away from the old 
methods of the Constitution. 

If we would preserve the Government of the fathers, if we 
would preserve the honor and integrity of the Senate, if we 
would do our full duty to our country under our oaths, we are 
not at liberty to reject the testimony in this case, which 
shows this seat to be filled here as the result of corruption. 
Hard it is; but as we have had fathers who have made sacri- 
fices for our land, as we have children to whom we hope to 
hand down a government of peace and justice and liberty, it 
rests with the Senate of the United States to do its duty now; 
and, hard and unpleasant as it may be, purge itself of the 
results of this foul conspiracy against the integrity and purity 
of our Government. 



THE BANKING AND CURRENCY BILL 

ADDRESS IN THE SENATE OF THE UNITED STATES 
DECEMBER 13, 1913 

At the second session of the Sixty-third Congress there was passed an act " to 
provide for the establishment of federal reserve banks, to furnish an elastic currency, 
to afford means of rediscoimting commercial paper, to establish a more effective 
supervision of banking in the United States, and for other purposes." This act was 
approved December 23, 1913. While it was imder consideration in the Senate, 
Mr. Root addressed himself at length to an amendment to section 16 of the bill, 
which he had previously offered, and which was as follows: 

In section 16 (Owen print of December first) strike out lines twenty-four 
and twenty-five, on page 37, and lines one to nine, inclusive, on page 38, and 
insert in lieu thereof the following: 

The Federal reserve banks may from time to time, with the consent and 
approval of the Federal reserve board, issue notes to meet business 
requirements. 

The said notes shall be obligations of the Federal reserve bank issuing the 
same and shall be receivable for all taxes, customs, and other public dues. 

They shall be redeemable in gold on demand at the Treasury Department of 
the United States in the city of Washington, D. C, or in gold or lawful money 
at the bank of issue. 

All note issues of the Federal reserve banks shall at all times be covered by 
legal reserves to the extent required by this section and by notes or bills of 
exchange arising out of commercial transactions, or obligations of the United 
States. 

All demand liabilities, including deposits and note issues, of the Federal 
reserve banks shall be covered to the extent of fifty per cent by a reserve of gold 
or other money of the United States which the national banks are now author- 
ized to hold as a part of their legal reserve: Provided, That whenever and so 
long as such reserve shall fall and remain below fifty per cent the Federal reserve 
bank shall pay a special tax upon the deficiency of reserve at a rate increasing 
in proportion to such deficiency, as follows: For each two and one-half per 
cent or fraction thereof that the reserve falls below fifty per cent a tax shall be 
levied of one and one-half per cent: Provided further. That no additional circu- 
lating notes shall be issued whenever and so long as the amount of reserve hdd 
by any Federal reserve bank falls below thirty-three and one-third per cent of 
its outstanding notes. 

Any notes of the Federal reserve banks in circulation at any time in excess 
of an aggregate of $900,000,000 for all of said banks, which are not covered by 
an equal amount of lawful money, gold bullion, or foreign gold coin, held by 
said banks shall pay a special tax at the rate of one and one-half per cent per 
annum, and any notes in excess of an aggregate of $1,200,000,000 for all said 
banks, not so covered, shall pay a special tax at the rate of five per cent per 

323 



324 GOVERNMENT AND CITIZENSHIP 

annum: Provided, That in computing said amoimts of $900,000,000 and of 
$1,200,000,000 the aggregate amount of any national bank notes then out- 
standing shall be included. 

The notes issued by the respective Federal reserve banks shall constitute a 
first lien upon all the assets of the bank issuing the same. It shall be the duty 
of the Federal reserve board to require the Federal reserve banks to maintain 
at all times the parity of value of the notes issued by said banks with the 
standard established by the first section of the act of March 14, 1900, entitled 
" An act to define and fix the standard of value, to maintain the parity of all 
forms of money issued or coined by the United States, to ref imd the public debt, 
and for other piuposes." 
This amendment was intended to safeguard the country against an inflation of 
the currency, which Mr. Root deemed likely to occiu" under the provisions of the 
bill as it then stood, and which he proposed to prevent by means of a special tax, 
whenever and as long as a legal reserve of fifty per cent of gold or other money of 
the United States in any reserve bank should fall and remain below that percent- 
age, such tax to be progressive in character. Other safeguards were provided in 
Mr. Root's amendment. 

Several replies were made to Mr. Root's speech, and he himself made an dabor- 
ate answer to these replies. When Mr. Root's amendment was brought to a vote, it 
was defeated: yeas 22, nays 49. 

It will be observed, however, that the bill before the Senate when Mr. Root 
spoke provided for a gold reserve of thirty-three and one-third per cent, as in the 
House bill. Mr. Root insisted that this gold reserve should be increased to fifty 
per cent, and the bill as finally passed raised the reserve to forty per cent, which the 
House conferees accepted. 

It will also be observed that Mr. Root's proposition to impose a tax or penalty for 
deficient reserves, which proposition, although it had been in the House biU, was not 
in the draft of the Senate bill at the time Mr. Root spoke and was opposed by the 
Chairman of the Senate Committee, was restored to the bill as it finally passed^ 

BEFORE proceeding to point out the specific effect of 
the proposed amendment which has just been read, I 
wish to repeat an acknowledgment which I have abeady 
made in the Senate of grateful appreciation for the devoted 
and sincere labors of the members of the Senate Committee 
on Banking and Currency. This acknowledgment applies to 
all the members of that committee, however their conclusions 
differ, as represented by the different forms of the bUl which 
are before us. I wish also to say that I think this bill has 
in it many very excellent and useful features which will be 
beneficial to the commerce of our country, and which ought 
to be enacted. 



BANKING AND CURRENCY 325 

I regret that the circumstances under which the measure 
comes before the Senate are not more favorable to real dis- 
cussion. I am not one of those who denounce caucuses and 
attempts to secure united party action. Under my own con- 
ception of a government by political parties, membership in a 
party involves certain obligations to attempt agreement upon 
that united party action which is necessary to discharge party 
responsibilities. I do not think that the declaration of affilia- 
tion with a political party should be regarded as merely a 
means of obtaining office, to be forgotten after office is 
obtained. I think that when by declaring himself a member 
of a political party a man has secured an election to office by 
his fellow-citizens, he has assumed toward them an obligation 
to sfeek to do his part toward discharging the responsibility of 
his party in putting into effect the policies which it declares. 

So, sir, I do not regard with the animosity and great dis- 
favor which have been expressed with great sincerity by some 
of my colleagues the attempt of the Democratic party to 
secure effective action along the line of their party declara- 
tions and principles. 

But, sir, I think it is very unfortunate that the Democrats 
of the Senate have taken their caucus action in advance of 
discussion on this bill in the Senate rather than after discus- 
sion. I think it would have been much better if the bill had 
been reported to the Senate so that we all could have dis- 
cussed it, so that differing opinions from different points of 
view could have been expressed, and then after the benefit of 
that discussion the dominant party had assembled and deter- 
mined its course of action. There would then have been more 
zest and life and sense of opportunity on the part of the 
members of the minority in discussing the bill. 

Certainly, sir, one of the chief advantages in our system of 
representative government is that it does give to those who 
hold the power by virtue of being in the majority the benefit 



326 GOVERNMENT AND CITIZENSHIP 

of the differing points of view of the minority. Discussion is 
most valuable when it involves an expression of those who 
differ, and not when it is a mere presentation of the views of 
those who agree. As it is, aU of us on this side of the chamber 
labor under the great discouragement of feeling that what- 
ever we may say the fate of the bUl and of every part of the 
bill is aheady determined. 

While there is a little hope, it is rather slight, because, as 
the Senator from Iowa [Mr. Cmnmins] pointed out yesterday, 
the burden is not to produce an effect upon individual mem- 
bers of the majority, but it is to convince a majority of the 
majority that they ought to reverse the conclusions which 
have aheady been reached — a very difficult thing to do. I 
am grateful to my friends upon the other side for permitting 
me to address myself to a task which is not, at least theo- 
retically, impossible, however practically improbable its 
accomplishment may be. 

The point toward which the amendment just read, is 
directed is the sixteenth section of the currency bill. Let me 
read the provision which I ask to have stricken out, under the 
head of " Note issues " : 

Sec. 16. Federal reserve notes, to be issued at the discretion of the 
Federal reserve board for the purpose of making advances to Federal 
reserve banks through the Federal reserve agents as hereinafter set forth 
and for no other piupose, are hereby authorized. The said notes shall be 
obligations of the United States and shall be receivable for all taxes, cus- 
toms, and other pubhc dues. They shall be redeemed in gold on demand 
at the Treasury Department of the United States, in the city of Washing- 
ton, D. C, or in gold or lawful money at any Federal reserve bank. 

You will perceive that that provision contains in its terms 
no limit whatever upon the quantity of notes that may be 
issued: 

Federal reserve notes, to be issued at the discretion of the Federal 
reserve board for the piupose of making advances to Federal reserve 
banks. . . . The said notes shall be obligations of the United States. 



BANKING AND CURRENCY 327 

That, sir, is to my view a plain, simple enlargement of the 
national currency of the United States. It is authority for 
the increase, practically, of what we call greenbacks. The 
notes will be obligations of the Government of the United 
States pure and simple. They are not credits of anybody 
else; they are credits of the Government of the United 
States. While technically they are not money but are 
promises of the United States to pay, I shall speak of them as 
money, just as we speak of our greenbacks as money, because 
in the ordinary colloquial use of words that description is 
best understood. 

Let me state now, before going on to consider further inci- 
dents to this issue of Government currency, the present posi- 
tion of our currency, because that is a necessary background 
to a consideration of the effect and propriety and usefulness 
of issuing more Government paper. 

According to the report of the Comptroller of the Currency 
for 1913, the total stock of money in the United States on 
June 30, 1913, was as follows: 

In the entire United States there were $3,720,000,000. Of 
that there were in the Treasury of the United States, held as 
assets against currency, $356,300,000, leaving in circulation 
$3,363,700,000. 

Of that there were in the banks of the United States, 
including national banks, state banks, and trust companies, 
$1,552,300,000, leaving out of the banks and in circulation 
among the people, that is, in real circulation, $1,811,400,000. 

On the basis of this currency and by the use of credits 
representing currency there were at the same time individual 
deposits in the banks of the United States of all the classes 
that I have enumerated, $17,024,000,000, the deposits being 
approximately nine to ten times the amount of actual money 
in circulation, and from ten to eleven times the amount of the 
actual money in the banks, this great excess of deposits being 



328 GOVERNMENT AND CITIZENSHIP 

brought about by the deposit of credits, the same amount of 
money serving for numerous successive credits. 

This money appears by the report of the Secretary of the 
Treasury for 1913 to have been of the kinds I shall state. Let 
me say that the figures of the comptroller were for June 30, 
1913, while the figures of the Secretary of the Treasury are 
for November 1, 1913. They will not tally exactly, but there 
are only the ordinary variations from day to day, and the 
differences are so slight that it is of no consequence for our 
purposes. 

This money was of the following description: Of gold 
coin, $614,478,201; of standard silver dollars, $74,012,152; of 
subsidiary silver, $160,486,188; of gold certificates, $1,021,- 
451,879; of silver certificates, $480,079,731; of Treasury 
notes of 1890, $2,583,874; of United States notes, that is, 
greenbacks, $341,401,413; and of national-bank notes, $722,- 
615,240; footing up on November 1, 1913, $3,417,109,678. 

In this enumeration of the kinds of money the Government 
appears as having issued, not including gold certificates, 
which really represent gold deposits — which are a trust fund 
against the certificates — the Government appears as having 
issued its paper, practically its promises to pay, of green- 
backs, $341,401,413; of Treasury notes of 1890, $2,583,874; 
and of silver certificates against the silver on deposit, $480,- 
079,731, makmg a total of $824,064,118 of Government 
obligations. Against that the Government had of gold 
reserves $150,000,000 and of silver deposited, upon which 
it had issued certificates, which the Government is under 
obligation to keep on a parity with gold, and which is, speak- 
ing roughly, worth about one-haK of gold, $480,079,739. I 
treat one-half of that silver as being security or reserve 
against the silver certificates; a little more or less is of no 
consequence. So that, as against this $824,064,118 of its 
demand obligations, the Government has in reserve in gold 



BANKING AND CURRENCY 329 

and silver value $391,331,000. It is now proposed to increase 
that amount of $824,064,118 of demand obligations of the 
Government by the issue of further Government obligations 
under the provisions of section 16, which I have read. The 
section proceeds to provide that the Government, in issuing 
these notes and advancing them to the reserve banks, shall 
take security from the banks, and that the banks shall hold 
in their vaults as applicable to making good to the Govern- 
ment the notes which have been issued to them a reserve. 
The reserve is to be thirty-five per cent; and it is required 
that at least thirty-three and one-third per cent of that 
amount of notes issued to the banks shall be based on gold. 

The bank is also to furnish to the Government, through a 
Federal reserve agent representing the Government, com- 
mercial paper to the amount of the notes. Those two kinds 
of security are provided for; a security which, if the Govern- 
ment were loaning money to you or to me in a specific trans- 
action, I should say should be deemed adequate security, and 
manifestly the members of the committee have regarded the 
provision as furnishing adequate security to the Government 
in respect of the particular transaction considered by itself. 
It is not, however, consideration of the transaction by itself 
as a simple matter of the loan of money or of credits upon 
securities to which I wish to invite your attention. I think 
that the relation of the series of transactions, of the possibili- 
ties of the powers vested in this central reserve board, and 
the effect of the exercise of that power as a whole from time 
to time, day after day, month after month, and year after 
year, upon our financial system, upon the commerce of the 
country, is the true subject for our consideration rather than 
the narrow question whether in a particular transaction the 
seciu'ity which the Government gets for its loan is adequate. 

Mr. President, it is desirable to get some idea as to what 
limitations upon this power to issue Government obligations. 



330 GOVERNMENT AND CITIZENSHIP 

that by its own terms has no limit, may be created by the 
requirement that the bank shall retain security in the way of 
reserves, because that will give some idea of the extent to 
which the power may be exercised. 

In the first place, the obligation that the bank shall hold a 
reserve will tend to operate to some extent as a limitation, 
because, if the banks do not hold a reserve, the Federal 
reserve board would not be justified in advancing further 
notes to them, and would be bound perhaps, then, to reduce 
the number they already have. Here is the provision of the 
bill: 

Every Federal reserve bank shall maintain reserves in gold or lawful 
money of not less than thirty-five per cent against its dej)osits and its 
Federal reserve notes in actual circulation, but the amount of gold in the 
Federal reserve bank, together with the amoimt dep>osited by it with the 
Treasury, shall be at least equal to thirty-three and one-third per cent of 
the Federal reserve notes issued to said bank and in actual circulation and 
not offset by gold or la^v^ul money deposited with the Federal reserve 
agent. The Federal reserve board may notify any Federal reserve bank 
whose lawful reserve shall be below the amount required to be maintained 
to make good such reserve; and if such bank shall fail for thirty days there- 
after so to make good its lawful reserve, the Federal reserve board may 
suspend and take p>ossession of such reserve bank and administer the same 
during the period of suspension. 

Assmning that that reserve is to be retained, the Senator 
from Virginia [Mr. Swanson] gave us some figures which I 
shall adopt. From my knowledge of the Senator's accu- 
racy, I presume they are correct, but I have not undertaken 
to verify them by my own calculations, because minor dif- 
ferences are of no particular consequence. The figures, as the 
Senator stated them, are that under the mandatory provi- 
sions of the bill the regional reserve banks would have total 
resources of about $636,000,000. Those include capital. 
Government deposits, and the reserve deposits of member 
banks. That is under the mandatory provision; and, as I 
think the Senator remarked in his speech, that is liable to be 



BANKING AND CURRENCY 331 

increased by voluntary accessions of state banks which may 
come in under permission of the statute, but the minimum 
may be taken to be $636,000,000. The Senator stated the 
quantity of Government notes which might be issued without 
any violation of authority or duty because of the reserve 
requirement, to the banks having that amount of assets — 
$636,000,000 — to be $1,817,000,000; which I think to be 
substantially correct. 

Now, sir, let us turn to the requirement that there shall be 
commercial paper furnished as security. We have found that 
upon this general authority, this unlimited authority, there is 
no restriction placed by the reserve provisions, except the 
power of the bank to get gold for the thirty-three and one- 
third per cent of its reserve. If it can get that, the amount to 
be issued may run from $1,800,000,000 up. The terms of the 
bill regarding the security to the Government I will read, as 
follows: 

Any Federal reserve bank may make application to the local Federal 
reserve agent for such amount of the Federal reserve notes hereinbefore 
provided for as it may require. Such application shall be accompanied 
with a tender to the local Federal reserve agent of collateral ia amount 
equal to the sum of the Federal reserve notes thus applied for and issued 
pursuant to such application. The collateral security thus offered shall be 
notes and bills accepted for rediscount under the provisions of section 13 
of this act. 

If we turn to section 13 of the act, we find a description of 
the bills and notes which may be tendered as collateral secur- 
ity. The description is important, because, while I do not 
quarrel with it as a proper description of the kind of com- 
mercial paper which may properly enter into banking trans- 
actions as a basis for banking credits, we ought to observe 
that the scope of the paper described is such that there is 
practically no business enterprise possible in our country 
that cannot be financed by the use of such paper. I refer to 
that because I am now trying to ascertain what limitations 



332 GOVERNMENT AND CITIZENSHIP 

upon the general power to enlarge the demand obligations of 

the United States can be found in the character of the paper 

that must be offered as security. Here is the description: 

Any Federal reserve bank may discount notes, drafts, and bills of 
exchange arising out of actual commercial transactions; that is, notes, 
drafts, and bills of exchange issued or drawn for agricultural, industrial, 
or commercial pmposes, or the proceeds of which have been used, or are 
to be used, for such purposes, the Federal reserve board to have the right 
to determine or define the character of the paper thus eligible for discoimt, 
within the meaning of this act. Nothing in this act contained shall be con- 
strued to prohibit such notes, drafts, and bills of exchange, secured by 
staple agricultural products, or other goods, wares, or merchandise from 
being eligible for such discoimt; but such definition shall not include notes, 
drafts, or biUs covering merely investments or issued or 'drawn for the pur- 
pose of carrying or trading in stocks, bonds, or other investment securities, 
except bonds and notes of the Government of the United States. Notes, 
drafts, and bills admitted to discount imder the terms of this paragraph 
must have a matiu-ity at the time of discoimt of not more than ninety 
days. 

There is in this description of the notes and bills — the 
paper which may constitute the security to be offered for the 
loan of the Government notes — no limitation whatever by a 
reference, either to the capital of the bank discounting or to 
the deposits of the bank discounting or to any other fixed 
standard. There is no limit that I can find in the bill to the 
quantity of paper of the kind described that any bank may 
take, except the bank's ability to get the money to pay for 
the paper. 1 have looked carefully for it, and I have asked a 
number of my friends if they could find it anywhere, and they 
have said they could not. 

There is no limitation in this bill. We as the lawmaking 

power impose no limitations. We do confer upon the Federal 

reserve board a power and discretion, and as to the efficacy 

of that authority on their part I shall speak in due course. 

The section proceeds: 

Any Federal reserve bank may discount acceptances which are based 
on the importation or exportation or domestic shipment of goods and 



BANKING AND CURRENCY 333 

which have a maturity at time of discount of not more than three months, 
and indorsed by at least one member bank. The amount of acceptances 
so discounted shall at no time exceed one-half the paid-up capital stock and 
surplus of the bank for which the rediscounts are made. 

We put into the bill a limitation upon that kind of paper, 
but we put in no limitation upon paper of the general descrip- 
tion I have already read. 

Then there is another limitation: 

The aggregate of such notes and bills bearing the signature or indorse- 
ment of any one person, company, firm, or corporation rediscoimted for 
any one bank shall at no time exceed ten per cent of the unimpaired 
capital and surplus of said bank — 

that is, we put a very proper limitation upon favors to 
single individuals or corporations — 

but this restriction shall not apply to the discoimt of bills of exchange 
drawn in good faith against actually existing values. 

From which it is to be inferred that the discount of notes 
and bills of the kind described is expected, though they be not 
drawn in good faith against actually existing values; and 
against those which are not drawn against actually existing 
values the limitation of ten per cent to one person applies. 

Mr. President, one of the causes of complaint of our present 
financial system has been that during the dull season, when 
money is not needed for crop moving or other great business 
movements, it tends to flow to the city of New York, where it 
goes first into the reserve deposits of the country banks at 
two per cent interest, and next goes into deposits outside of 
the reserves and is loaned on call upon collateral security and 
is used in speculation in the stock market and used for the 
promotion of new enterprises. It has long been one of the 
^reat sources of trouble in the autumn, when money is 
needed in the country to move the crops, that the money 
that has flowed to New York when it was not needed in the 
country has been taken by the New York banks at interest, 
and the banks, having to make something from it in order to 



334 GOA'ERNISIENT AND CITIZENSHIP 

pay that interest, have been driven to taking security which 
was not of the highest quaHty; that is, they have been driven 
to putting the money out upon collateral consisting of securi- 
ties of new enterprises the value of which depended upon 
their being completed and successful. The real trouble about 
getting in that money in the autumn for use in the country 
has been, not the trouble of getting in money that was loaned 
out on good securities of established concerns, estabHshed 
corporations, railroads, and industrials, but the difficulty of 
getting in money that had been loaned on the securities of new 
enterprises aU over the countrj^ that depended for their 
means of payment upon the success of the enterprises. 

I imdertake to say that there is no new enterprise conceiv- 
able in this countrj', that no one of us has known in the past 
decade a new enterprise, which could not be financed by biUs 
and notes coming within the description of the biU I have 
read. It is as easy to turn from a collateral note, such as is 
used now in absorbing the great mass of money that flows to 
New York everv' year and is loaned out, and turn to bills and 
notes coming within this description as it is to buy a blank 
from a stationer. Obser\^e, sir, that the same rule of action, 
the same principle, which gives us seventeen billions of 
deposits in the banks of the countn- with less than three and 
a half billions of money in and out of the banks, with only one 
billion and a half of money in the banks, the same principle 
which gives us deposits more than ten times the amount of 
money that is in the banks, will be applicable in the making 
of the bills and notes that can be brought in as security for 
these Government notes; that is to say, merchandise in its 
passage from the point of production to the point of consump- 
tion may be drawn against by successive holders in good 
faith, and each transfer may be made the basis of a bill upon 
which discount may be obtained, upon which a Government 
note can be issued. 



BANKING AND CURRENCY 335 

So, sir, I think we find no recourse by way of limitation 
here in anything that we impose by our bill against as vast an 
enlargement of the demand obligations of the United States 
as the reserves of the banks will permit. When we consider 
the more than twenty billions of internal trade; when we 
consider the more than three and a half billions of foreign 
trade; when we consider the immense opportunities for 
enterprise afforded by the great and not half-opened or 
exploited regions of the South and West; when we consider 
the energy and optimism and sanguine spirit of our people, 
we must face the probability, the certainty, that this offer of 
practically unlimited funds from Uncle Sam to all his people 
will result in an activity of enterprise that will absorb the 
maximum which the required reserves permit and require 
the extreme exercise of the authority of the reserve board to 
issue these obligations. 

Now let me return to the fundamental propositions upon 
which we began to address ourselves to this subject, and call 
attention to the fact that one of those propositions was that 
we should have an elastic currency. 

What is an elastic currency ? We all agree that it is a cur- 
rency which expands when more money is needed and con- 
tracts when less money is needed. It is important not merely 
that the currency shall expand when money is needed, but 
that it shall contract when money is not needed, for to an 
industrial and commercial country a redundant currency is 
the source of manifold evils, some of which I shall presently 
point out. 

At present I observe that this is in no sense a provision for 
an elastic currency. It does not provide an elastic currency. 
It provides an expansive currency, but not an elastic one. 
It provides a currency which may be increased, always 
increased, but not a currency for which the bill contains any 
provision compelling reduction. 



336 GOVERNMENT AND CITIZENSHIP 

I am not now speaking about what the reserve board may 
do. lamspeakingabout what wedo; about how we perform 
our duty. The universal experience, sir, is that the tendency 
of mankind is to keep on increasing the issue of currency. 
Unless there is some very positive and distinct influence 
tending toward the process of reduction, that tendency 
always has, in all the great commercial nations of the world, 
produced its natural results, and we may expect it to produce 
its natural result here, of continual, progressive increase. 

The psychology of inflation is interesting and it is well 
understood. No phenomenon exhibited by human nature has 
been the subject of more thorough, careful, and earnest study 
than that presented by the great multitude of individuals 
making up the business world in any country in the process of 
gradual inflation. It is as constant as the fundamental quali- 
ties of humanity, and it differs in different countries only in 
degree, according to the hopefulness and optimism or the 
natural conservatism and caution of the people. 

If the people of the United States have not wholly changed 
their nature from the nature which has been exhibited in all 
the financial history of England, from which many of us 
came; in all the financial history of France, from which many 
of us came; in all the financial history of Germany, from 
which many of us came; of Austria, of Italy; unless our 
human nature has been changed, we may confidently expect 
that under this proffer of easy money from a paternal Gov- 
ernment, available for each one of us, available to send the 
lifeblood into the enterprise of every quarter of our vast 
country, available to enable all the young and hopeful and 
energetic Americans, east and west and north and south, to 
embark in business ventures which will lift them up from the 
hard conditions of daily toil, we may confidently expect that 
the same process will occur that has occurred time and time 
and time again in older countries. 



BANKING AND CURRENCY 337 

That process is this: little by little the merchant, the 
manufacturer, the young man starting out for himself and 
with a good character, enough to give him a little credit; the 
man with visions of great fortunes to be won; the man with 
ideals to be realized; the inventor, the organizer, the pro- 
ducer; little by little, with easy money, they get capital 
to begin business and to enlarge business. As the business 
enlarges sales increase, and prosperity leads to the desire for 
growth. They all have before them spectacles of great for- 
tunes made by the men who have grown from small begin- 
nings to wonderful success — the Wanamakers, the Marshall 
Fields, the great manufacturers, the Fords. I could enumer- 
ate a thousand whose example, whose phenomenal success 
today inspire young Americans with boundless hope. Little 
by little business is enlarged with easy money. With the 
exhaustless reservoir of the Government of the United States 
furnishing easy money, the sales increase, the businesses 
enlarge, more new enterprises are started, the spirit of 
optimism pervades the community. 

Bankers are not free from it. They are human. The mem- 
bers of the Federal reserve board will not be free from it. 
They are human. Regional bankers will not be free from it. 
They are human. All the world moves along upon a growing 
tide of optimism. Every one is making money. Every one is 
growing rich. It goes up and up, the margin between cost and 
sales continually growing smaller as a result of the operation 
of inevitable laws, until finally some one whose judgment was 
bad, some one whose capacity for business was small, breaks; 
and as he falls he hits the next brick in the row, and then 
another, and then another, and down comes the whole 
structure. 

That, sir, is no dream. That is the history of every move- 
ment of inflation since the world's business began, and it is 
the history of many a period in our own country. That is 



338 GOVERNMENT AND CITIZENSHIP 

what happened to greater or less degree before the panic of 
1837, of 1857, of 1873, of 1893, and of 1907. 

So, sir, I can see in this bill itself, in the discharge of our 
duty, no influence interposed by us against the occurrence of 
one of those periods of false and delusive prosperity which 
inevitably end in ruin and suffering. For, Mr. President, the 
most direful results of the awakening of the people from such 
a dream are not to be found in the banking houses — no; not 
even in the business houses. They are to be found among the 
millions who have lost the means of earning their daily bread. 
They are to be found in the dislocation and paralysis of the 
great machinery which gives the value to the product of the 
toiler by transporting it from the place where it is produced, 
and is worthless because there is no one to use it, to a place 
where it can be used and by finding some one to use it who 
will pay for it. 

This question for all my friends in the West, the farmers of 
the West, is not a question of country banks. It is a question 
that goes far deeper than that. When the farmer has put his 
toil and his savings into his crop of com or wheat or cotton, 
for the reward of his industry and its continuance in future 
years and the support of his family, he depends upon what ? 
Why, sir, upon the continued and effective working of this 
vast machinery of transportation, distribution, and pay- 
ment; and if that machinery is dislocated, if a necessary part 
refuses to work, it is Kke striking with a sledge hammer the 
machinery of the automobile; the car stops. The effect of 
such a period of inflation, of false prosperity, and of inevi- 
table catastrophe, is to deprive every producer upon the 
farm, in the mine, in the factory, of the reward of his labors. 

Mr. President, I am going presently to deal more specifi- 
cally with just what will necessarily happen in the event of 
this process; but before doing that I want to call attention to 
the way in which pretty much all the wisdom that has not 



BANKING AND CURRENCY 339 

been put into this bill has dealt with the problem in times 
past, and has concluded that it ought to be dealt with now. 
The method universally adopted in the great world of busi- 
ness for preventing such a proceeding is to have what we 
started out to try to get, an elastic currency. It is to provide 
for a currency that will come down by the operation of 
natural forces as well as go up. It is to put a limit, a limit 
first of self-interest, upon the increase, and then, beyond a 
certain danger point, an absolute prohibition. 

It is manifest that when banks issue currency there is a 
certain limitation involved in the nature of things, because 
their credit is not unlimited, and they can go only about so 
far without their issues being affected. When you have a 
bank currency as they have in England and in France and in 
Germany and in Canada, the banks cannot in the nature of 
things go more than a little way beyond the legitimate 
requirement of the business of that country. 

But we are proposing to furnish everybody who can draw 
and sign a bill, currency that has behind it the credit of the 
American people — the Government of the United States. 
What limit is there to that credit now ? What limit up to 
this time ? There may be a limit owing to the working of this 
bill, but there is none yet. 

Furthermore, it has been the custom to impose specific 
limitations even upon the amounts the banks can issue. The 
Bank of England is limited to the gold actually in possession, 
except as to a certain small quantity, fifteen to eighteen mil- 
lion pounds sterling — something less than $90,000,000 — 
which it can issue as against Government securities, an 
amount which it is supposed wUl necessarily remain out in 
the pockets and the stockings and chimney-pieces of the 
people. The Bank of France is limited in amount; the Ger- 
man Bank in amount and by a progressive tax; the Cana- 
dian banks to the amount of their capital, with a certain 



340 GOVERNMENT AND CITIZENSHIP 

moderate excess specifically stated by statute for particular 
emergencies. 

We have had a comimission, a Monetary Commission, 
which has made a very careful and thorough study of this 
subject for the purpose of furnishing a basis upon which Con- 
gress might act. I think that commission included as good a 
representation of the ability and faithful devotion to service 
of the two Houses as it was possible to find. It was not parti- 
san. Republicans and Democrats alike united, and they 
united in a report. 

1 am aware, sir, that upon some features of that report 
there is a violent opposition to the conclusions of the com- 
mission. Upon the question of a central bank, which they 
recommended, the platform of the Democratic party is sup- 
posed to have pronounced an adverse verdict. I am not 
going to discuss those questions; but certainly the conclu- 
sions reached by that commission, composed of men of both 
parties uniting upon the practical expedients by which an 
elasticity of currency may be secured and undue inflation 
may be prevented, is not a party question; it is not a partisan 
question; it is not a local question, but it is a question to 
which we can all address ourselves with a common desire 
to reach a conclusion for the best interests of our country. 

The methods recommended by that commission to secure 
that result are, in substance, those which I have included in 
the amendment I have had the honor to present. The com- 
mission would make the notes issued not notes of the United 
States, to be loaned by the Government, but notes of the 
banks, with such limitation upon their issue, in the first place, 
as comes from the limit of credit of a creature as compared 
with the creator, and, next, with the specific limitation upon 
them that they shall be covered by a fifty per cent gold 
reserve, and that whenever that reserve falls below fifty per 
cent the reserve bank shall pay a special tax upon the defi- 



BANKING AND CURRENCY 341 

ciency of the reserve at a rate increasing in proportion to the 
deficiency, as follows: For each two and one-half per cent, 
or fraction thereof, that the reserve falls below fifty per cent 
a tax of one and one-half per cent; so that if the reserve got 
down to forty-five per cent there would be a three per cent 
tax; if it got to forty per cent there would be a six per cent 
tax; if it got down to thirty-five per cent there would be a 
nine per cent tax; if it got down to thirty-three and one-third 
per cent it would stop absolutely. 

Of course, the natural effect of that is that it becomes 
unprofitable for the bank to issue more money than the 
country requires, and you tell what the country requires by 
the ability to get the gold and by watching, as every banker 
who knows his business does watch, the course of business 
of each customer who is dealing with the bank. 

Then there is another line of limitation. The line which I 
have just described is to bring down the quantity of notes put 
out. It is to make the elasticity downward, which is wholly 
omitted from the bill as it stands now, and it is to bring it 
down not by a command, not by vesting authority in some- 
body else to command it or require it, but by imposing a tax 
which will automatically make it for the self-interest of every 
banker to bring it down when the time comes at which it 
ought to come down. Then here is the other line, which is 
designed to put a rubber band on the expansion of this cur- 
rency, so that the higher it goes the harder the band will pull 
and keep it back, and finally fixing a point where it must 
stop anyway. 

I am now reading from the amendment which follows the 

recommendation of the Monetary Commission. 

Any notes of the Federal reserve banks in circulation at any time in 
excess of an aggregate of $900,000,000 for all of said banks, which are not 
covered by an equal amoimt of lawfiJ money, gold bullion, or foreign gold 
coin, held by said banks shall pay a special tax at the rate of one and one- 
half per cent per annum and any notes in excess of an aggregate of $1,- 



342 GOVERNMENT AND CITIZENSHIP 

200,000,000 for all said banks, not so covered, shall pay a special tax at the 
rate of five per cent per annum : Provided, That in computing said amounts 
of $900,000,000 and of $1,200,000,000 the aggregate amount of any 
national-bank notes then outstanding shall be included. 

That wiU make it for the self-interest of the bankers not to 
push up their notes unduly, even though they have the 
reserves. 

Right at this point I wish to call attention to the fact that 
we are already by other means inflating our currency. Of 
course, this bill very properly provides for retaining the pres- 
ent seven himdred and forty-odd million dollars of national 
bank currency. Either in their present form or in the con- 
verted form, the amount is to remain out. This provision of 
the amendment with its two figures of $900,000,000 and 
$1,200,000,000, would allow the increase of the currency 
without a repressive tax of about $160,000,000. That is 
bringing our seven hundred and forty-odd million doUars of 
present national bank currency up to $900,000,000. 

It would allow under the repression of a tax the currency 
to go up $300,000,000 more. It is not made impossible, when 
business really requires it, to have $300,000,000 more. So it 
varies between $160,000,000 and $460,000,000 increase. 
After reaching $460,000,000, the five per cent tax comes down 
and makes it practically impossible or wholly unprofitable to 
increase. 

I said we are inflating otherwise than by this proposed issue 
of Government notes. We have been quite progressive in our 
treatment of Government money. For a long time no Gov- 
ernment moneys were deposited in banks except internal 
revenue receipts. Then, a few years ago, we broadened out, 
and we allowed the Secretary of the Treasury to deposit cus- 
toms receipts upon certain securities. The practice under 
that permission has progressed. At first it was considered 
suitable for the Secretary of the Treasury to demand security 



BANKING AND CURRENCY 843 

for the deposit of customs receipts of very much the same 
character as the security for the issue of currency; and he 
issued a list of the kind of bonds which he would take. Now 
— and I do not quarrel with it — the Secretary of the Treas- 
ury is making deposits on commercial paper. I say I do not 
quarrel with it, but it is a progressive increase of the available 
currency of the country; instead of having large amounts 
locked up in the independent Treasury. 

Then, in this bill we are enlarging our currency. I will not 
call it inflating, because the word has a bad sense, and when I 
use it I mean it in a bad sense. We are enlarging our cur- 
rency by the reduction of the reserves. Take, for instance, 
the central reserve banks. I will take, for example, the 
Bank of Commerce in New York, because I happen to be 
somewhat familiar with it. The Bank of Commerce has 
somethmg over $100,000,000 of deposits — call it $100,000,- 
000. Under the present law it has to keep twenty-five per 
cent of reserves — that is, $25,000,000, locked up in the 
vault. It cannot use them. If it does, the comptroller comes 
after the bank. Under this bill the reserve is reduced to $18,- 
000,000. That releases $7,000,000. That one bank adds 
$7,000,000 to the available currency of the country. But 
that is not all. Of the remaining $18,000,000 of reserve that 
it has to keep, it only has to keep six-eighteenths in its vaults, 
and it ha«! * ^ put five-eighteenths into the regional bank. I 
think i 't. The difference between six-eighteenths in 

the vault a. 've-eighteenths it has to put in the regional 
bank, it can eitii^r keep in the bank or put in the vault. It is 
fair enough to assume that approximately one-half will go 
into the vaults and one-half into the bank, because that is 
permitted and that would be natural; but that half — that is 
to say, nine per cent — that $9,000,000 which will go into the 
regional bank will not be locked up, but sixty-five per cent of 
it can be loaned by the regional bank. So you find that 



344 GOVERNMENT AND CITIZENSHIP 

between twelve and thirteen millions of the money which that 
one bank has had to keep locked up in its vaults is going to be 
set free by the operation of this bill and added to the available 
live currency of the country. 

I have not taken the trouble to figure it out, because it is 
not important, but extended to all the national banks, apply- 
ing to aU of them, the same process which sets free between 
twelve and thirteen millions of the money of the Bank of 
Commerce, you find a very handsome enlargement of iJie free 
and independent currency of om* realm. So we are all moving 
in the same direction, in a direction which, imless brakes are 
put on somewhere, is going to land us in inflation. I conceive 
it to be our duty to put the brakes on, and not leave it for 
anybody else to do it or not to do it, as he sees fit. 

Now, let me turn more directly to the consequences of the 
inflation which seems to me to be inevitable if we pass this 
bill as it is. I have said that a crash inevitably comes from 
the kind of process which easy money produces. But, Mr. 
President, long before that crash comes the rest of this world 
of commerce that we have so recently really entered upon will 
have seen the signals of the approaching storm. My memory, 
sir, goes back to the time when really there was no inter- 
national banking in the United States, when our banks were 
all local institutions. I have seen the process go on step by 
step as we have grown in wealth and have extended our 
enterprise up to a point where we are engaged in a mighty 
commerce and where we feel every impulse given in the Old 
World; for the movements of trade are felt across the ocean 
as quickly as the diaphragm at one end of the telephone 
responds to the voice at the other, and every impulse that we 
give is felt in every civilized country of the world. We have 
entered into that companionship and we can never retire from 
it; for the vast and varied industries of our people are depen- 
dent upon the continuance of the processes which involve 



BANKING AND CURRENCY 345 

conjoint and correlative action by our own and every other 
civilized country. 

The rate of interest cannot go up two per cent in the city of 
New York but that the rate of exchange upon London falls. 
The rate of interest cannot go down but the rate of exchange 
upon London rises. The business men of Europe follow the 
com-se of business in the United States with a degree of solici- 
tude and of careful attention and accurate information that 
no man in this chamber has ever equaled. They know the 
course of trade. They know the currents of opinion. They 
know the dangers that lie before us. They know what steps 
are being taken to avoid them. The confidence or distrust of 
American finance responds to the trained judgment of a mul- 
titude of men who are familiar with the business of the world, 
following carefully and with accurate information every 
movement of American finance and American commerce. 

I say that long before the crash as the result of inflation, 
the men who are following our affairs in Europe will have 
seen the signals of the approaching storm. Why should they 
not, when we are carrying on a trade with Europe which 
involved during the year ended June 30, 1913, exports 
from this country to other countries of $2,428,506,358 in 
value, and imports from other countries in the same year of 
$1,812,978,234 ? Why should they not, when there are held 
in Europe of American securities, the stocks and bonds of 
our railroads and industrials and mines and manufactories, 
amounts variously estimated at from four to seven billion 
dollars ? 

I have tried to see if I could get something more definite 
upon that, but it is pretty difficult to be very accurate; neces- 
sarily there must be some element of estimate. I have an 
estimate by Babson's Statistical Organization, a concern 
whose figures are well considered and are regarded as trust- 
worthy. They say Europe holds over $7,000,000,000 of 



346 GOVERNMENT AND CITIZENSHIP 

American securities. My impression, gathered from my 
attempts to get information from other sources, is that that is 
rather a large estimate, but it is somewhere between $4,000,- 
000,000 and $7,000,000,000. So there is reason why we 
should be carefully watched abroad. You must remember 
that those people who are engaged in business abroad have 
been through a hard experience. I doubt if the French will 
ever forget the results of their attempt to issue government 
money, the French assignat, which disappeared with the 
credit of the country. Great Britain has had her hard expe- 
rience. The distress, suffering, and ruin that followed an 
inflation of her currency prior to the year 1811 led to the 
appointment of a special commission of the House of Com- 
mons to consider the whole subject and report upon it. In 
1811, that commission brought into the House of Commons 
what is known as the Bullion Report, which is one of the 
great landmarks in the history of finance. That report was 
rejected by the House of Commons when it came in. It was 
treated by the House of Commons just as the report of our 
Monetary Commission is being treated by our Congress now; 
but in 1819, eight years after, the British Parliament came 
to see that the commission had been right and they had been 
wrong, and they adopted those sound principles recom- 
mended by that commission on which the currency and finan- 
ces of Great Britain have been regulated ever since, the same 
principles which underHe and are expressed in the report of 
our Monetary Commission. 

Mr. President, it is upon the soimd basis of those principles 
embodied in the bullion report of 1811, once rejected and sub- 
sequently accepted by the British Parliament, that Great 
Britain has come to be the greatest finaucial, commercial, 
and industrial power that the civilized world has ever known. 
We should not be unwiUing to learn something from the 
experience of a people who, through hard experience, have 



BANKING AND CURRENCY 347 

come to an understanding that has made them so great and 
so successful. 

Sir, with this past of their owivand with this active interest 
in our affairs resulting from their intimate connection with 
them, I say again, long before the crash comes the people of 
finance and commerce in Europe will have seen its approach. 
The universal law under such circumstances is that the exis- 
tence of an inflated currency and doubt of the soundness of 
financial policy immediately result in gold leaving the coun- 
try. I say that is the universal law; that is the universal 
human experience. We can no more change it than we can 
make the light turn back on its course from the sun. I say 
the gold will leave the country; and I beg my fellow Senators 
to consider for a moment the elements of danger that will lie 
before us and that we ought to contemplate. 

We set great store by the fact that the balance of trade is in 
our favor. For a number of years our exports have exceeded 
our imports by approximately $500,000,000, and for the last 
year $600,000,000; but that is only the visible trade, that is 
only the trade that finds its record in the custom houses. 
There is an invisible balance that we must not forget. 

Before passing to that, let me suggest that we ought to re- 
member that this balance of trade is not a constant quantity. 
It is certain to be affected by some circumstances of recent 
origin. To what extent no man can tell, but it is certain to be 
affected to some degree. One is the lower tariff. Of course 
that is expected to result in increased importations; that is 
the universal experience, and about that I suppose there will 
be no controversy. With the lower tariff that has just been 
adopted, the tendency will be to increase importations and 
yro tanto to cut down the balance of trade in our favor. 

On the other hand, we all know that we are approaching 
the limit of our exportation of foodstuffs, that great basis of 
our exports of former years. We are importing beef from 



348 GOVERNMENT AND CITIZENSHIP 

Argentina, and wheat from Canada, and cattle also from 
Canada. Year by year our exports of foodstuffs have been 
going down, and we must hereafter chiefly depend for our 
exports upon manufactured products and cotton. Those are 
subject to vicissitudes — cotton to good and bad crops and 
manufactures to good and bad times. No one can teU what 
the effect is going to be upon our manufactures because of 
the causes already enumerated. This, however, is quite 
certain, that in many quarters there is going on a substantial 
reduction. 1 suppose the people who are reducing do not say 
much about it, because they are afraid of being hanged, but 
it is going on. 1 hope it will not continue; 1 hope it is but 
temporary; but we must consider the possibiHty of a reduc- 
tion of our exports on that account, through the absorption of 
our food products by our own people and the increase of 
imports because of the lowering of the tariff. 

I pass on to circumstances which, as I have said, produce 
an invisible trade balance that must not be left out of 
account. In the first place, there are the interest and the 
dividends which have to be paid upon the immense amount 
of securities held abroad. If you take a very moderate mean 
between the two estimates of foiu" thousand milHon dollars 
and seven thousand million dollars and at a moderate 
estimate of interest, you will have to allow at least $250,- 
000,000 going abroad annually to meet the interest and 
di\'idends paid every year to foreign holders of our seciuities. 

The next item in that categor^^ is the expenditure of 
tourists abroad. Many years ago it used to be estimated 
that tourists spent annually a hundred million dollars abroad. 
The number of Americans who are fortunate enough to be 
able to go to Europe has enormously increased, and the best 
estimate that I have been able to get puts a minimum of 
the expenditures of American tourists abroad at $250,000,000 
a year. 



BANKING AND CURRENCY 349 

Then, as our merchant marine has practically disappeared, 
we pay the freight and the insurance — certainly practically 
all the freight one way — on the goods exported or goods 
imported, however the custom of the particular trade may be, 
and that freight is paid to the foreign steamship owners. A 
minimum estimate of that would be $50,000,000 a year. 
Then, there is the enormous amount of money that is sent 
abroad in small sums by our comparatively recent arrivals. 
Several years ago I know that an inquiry developed that over 
$70,000,000 of postal orders alone were sent abroad. Whole 
districts in southeastern Europe are being supported largely 
in that way. One hundred million dollars is a very moderate 
estimate for that. Of course there is, besides, a very great 
amount sent through private bankers; it is not confined to 
postal orders. 

There we have, sir, $650,000,000, all of which has to be paid 
in gold and all of which goes abroad. With our exports at 
their height, with the apparent visible balance of trade in our 
favor at the highest point it has ever reached, without any 
diminution or set-off or set-back, this invisible outflow of gold, 
for the causes which I have mentioned, completely offsets the 
balance of trade, so that we stand without protection there. 

There is another circumstance that we ought to consider, 
and which it is our duty to consider, when we are forecasting 
what may happen in the future in the working of the system 
we are proposing, and that is that for several years our rail- 
roads — and I suppose to some extent our industrial con- 
cerns — have found it difficult to renew bonded indebtedness 
by long-term bonds. They have been living from hand to 
mouth by putting out short-term securities or notes having 
less than a year or but little over a year to run. Of course 
those notes, taking them in the aggregate, constitute an ele- 
ment of danger, because they come pretty near being demand 
obligations, and if before they come due doubt is created, if 



350 GOVERNMENT AND CITIZENSHIP 

before they become due an unfavorable judgment about the 
financial policy of the United States is created abroad, then 
look out. They will have to be paid. If they are not paid, 
what will happen ? The destruction of credit, not alone of 
the railroads issuing them, not alone of the banks holding 
them, but of the multitude of people who are carrying on 
their business and securing capital upon the securities, the 
stocks and bonds, of the corporations which have issued the 
short-term notes. 

Let me not forget before I finish this to speak about the 
quantity. The Journal of Commerce of November 19 of this 
year contained an article which gives the result of an investi- 
gation made by that very trustworthy journal into the sub- 
ject. It states that the amount of short-time securities 
coming due within three years is about one thousand milHon 
dollars. I have another estimate, taken from a pamphlet 
issued by the Guaranty Trust Company of New York, a 
trustworthy institution and one which certainly has no object 
in not giving correct figures — they have every interest to 
give correct figures — and I do not doubt that this is the 
result of careful inquiry. They give the amount of short- 
term securities due in 1914, omitting everything but the 
millions, as $468,000,000; m 1915, $320,000,000; in 1916, 
$90,000,000; in 1917, $88,000,000; and in 1918, $111,000,000. 
That would make in the next three years $879,000,000, and in 
five years $1,079,000,000. So here are, in round numbers, 
$1,000,000,000 in short-term securities about to become due, 
and from four to seven thousand miUions of securities held in 
Europe. 

Here, considering always the question as to whether we are 
in danger from the consequence of a loss of confidence in our 
financial policy in Europe, we must not forget another ten- 
dency of recent years that has been very disquieting. It has 
been to restrict the railroad transportation companies, to 



BANKING AND CURRENCY 351 

restrict their rates, and to enlarge their obligations — that is, 
their duties — in a manner very disquieting to the holders of 
railroad securities; and the tendency in recent years has 
been, in legislation, in litigation, and in public expression, to 
promote treatment of industrial corporations in a manner 
very disquieting to the holders of their securities. I am not 
now expressing any opinion regarding either of these ten- 
dencies. It would lead me into a discussion quite apart from 
my present object. I am merely stating the fact that the 
railroads, rightly or wrongly, complain that their rates are 
being held down by the Interstate Commerce Commission 
and that their expenses are being pushed up by the demands 
of labor and by the increased cost of all materials, so that 
the margin between expenditures and income is gradually 
decreasing, and they are saying that the process cannot go on 
without cutting off dividends. I am not going to argue 
about that, but it is undeniable, and it is supported by the 
fact that some railroad corporations have been compelled to 
adopt that policy. The Chicago, Milwaukee & St. Paul 
Railroad has reduced its dividends, the New Haven Railroad 
has passed its dividend, and other railroads have reduced 
their dividends. All this will necessarily have a certain dis- 
quieting effect, and tend toward distrust on the part of the 
holders of the thousands of millions of dollars of our securities 
abroad. 

The threats against the industrial corporations have had 
very much the same effect, and we may rely up>on it that the 
holders of this great mass of American securities abroad are 
going to be in a condition of sensitive alertness regarding our 
credit and the soundness of our financial j)olicy. In that 
condition it requires very little to produce immediate results. 
The same kind of an outcry that started a run on the bank in 
Omaha, which the Senator from Nebraska told us about 
yesterday, would start a run on us. It would take very little. 



352 GOVERNMENT AND CITIZENSHIP 

not merely to stop foreign investment in our enterprises, but 
to bring tumbling back upon us the thousands of millions of 
securities now held abroad; and when they come, they must 
be bought; they will be bought; and they will all have to be 
paid for in gold, and the gold will leave our country; it will 
go abroad to pay for the securities which come here. 

Very little things start a process like that. Mr. President, 
in March, 1907, there were over $200,000,000 of American 
securities sent back from Europe, merely on the judgment of 
people there that our affairs were not going quite right. So, 
long before October, the wise ones there had an idea that 
things were not going quite right here; they had dimly fore- 
seen what would happen in the panic of 1907; and over 
$200,000,000 of securities came over here and had to be 
bought, and the gold went to Europe. That is one of the 
things that helped to accentuate the conditions that produced 
the panic. The Senator from Rhode Island [Mr. Lippitt] 
observes justly that it was one of the very important things. 
Last September over $200,000,000 came over here on some 
judgment of some people that it would be wise to reduce 
the risk of our finances here. A very httle loss of confidence 
would bring this whole mass tumbling down on us; and, 
as I have said, when they come they wiU be bought, and 
the gold will go to Europe to buy them and pay for them. 

The way it works out, Mr. President, is this: if somebody 
in London sells something here, it has to be paid for in gold, 
of course. The debtor here goes out into the market to buy 
London exchange; if he can buy it for less than it costs to 
ship the gold, he buys it and he pays his debt with it — that 
is, he pays his debt to the man in London by a bill drawn on 
London, which the man in London can turn into money 
there. 

The cost of shipping gold is along in the neighborhood of 
two per cent, and therefore the American banker will buy biUs 



BANKING AND CURRENCY 353 

if he can get them within two per cent, but if it costs more 
than it costs to ship gold, he ships the gold, and the gold goes 
out. Of course, the greater the amount that must be paid the 
higher the cost of exchange, and therefore the more gold goes 
physically from this shore to the other in order to make the 
payment. When exchange is high, gold goes out; when 
exchange is low, gold stays or comes this way. 

To go one step further in the process, the people who have 
to pay this gold abroad have a perfectly simple process 
through which to get it. They go to their bank, and, unless 
the transaction is carried on entirely through credit, if they 
do not get the gold in that way by check, they always are at 
liberty to draw greenbacks, and with the greenbacks they take 
the gold out of the Treasury; or, if under this bill they get 
reserve notes, government notes, the notes are always to be 
redeemable in gold at the Treasury, or gold or lawful money 
at the banks, and with the notes they can get the gold, or 
they can get greenbacks with which they can get the gold. 
When the amount of money to be paid in a foreign coun- 
try exceeds the amount that is coming from the foreign 
country you cannot keep gold in any reserve except by failure 
— suspension of payment. There is a continual draft that 
cannot be prevented. 

I said that these securities, when they come here, will be 
bought. They must be bought. If they are not, if nobody 
buys them, they go down and down and down, and the credit 
of all the great industrial and transportation organizations of 
this country is ruined, and none of them can raise any more 
money anywhere, in any way, on any terms. What is more 
than that, the banks that hold the securities are ruined, and 
the men who have put the securities behind their obligations 
to the banks in order to conduct their business are ruined. 

Mr. President, I am quite in favor of doing away with the 
speculative use of money in the city of New York; but that is 



354 GOVERNMENT AND CITIZENSHIP 

by no means doing away with the use of the great body of the 
securities of the country as a basis of credit. That speculative 
use is but a trifle compared with the vast employment of 
ownership certificates, bonds or stocks, in the great enter- 
prises of the country, by private individuals, as a basis for 
the credit on which they get the means to conduct their 
business. If you let the prices of these securities, when they 
come back here, go down out of sight, the business of the 
country goes down with them to ruin. There is no use dis- 
cussing whether they must be bought. They will be bought. 
The human nature of private, indi\adual persons will lead 
them to buy, and the payment will go abroad. 

There is another thing you must remember. Europe is an 
armed camp. For many, many years i>eace has been kept 
by the most delicate adjustments and by the most strenuous 
exertions of many men in many countries, who have been 
alert and soHcitous to stop controversy as near its origin as 
possible, and to prevent the frightful effect of general war; 
but war is always possible. The fear of it is always present. 
If a war comes, immediately our securities come back to us. 
Immediately, in every country where they are held, the desire 
to strengthen up, to increase the amount of gold, will operate 
to lead to a general conversion of the American securities 
they hold into immediately available gold. 

It is not necessary that we should wait for a war actually to 
take place. The fear of it leads to the result. The fear of the 
Balkan War, far off on the edge of civiKzed Europe as it was, 
because of the apprehensions of possible impHcation of the 
great commercial nations in a war consequent upon the Bal- 
kan War, sent back to this country hundreds of millions of 
securities, which had to be bought. 

So, sir, if we enter upon this career of inflation we shall do 
it in the face of clearly discernible danger — danger which, if 
realized, will result in dreadful catastrophe. 



BANKING AND CUHRENCY 355 

I have been giving the reasons why the results I describe 
would happen ; but it ought not to be necessary to give them 
or to argue about them, for the experience of mankind has 
been reduced to the expression of economic laws which are 
universally admitted. There is no better known economic 
law than the one which passes by the name of Gresham's 
law. We all know it. It is that inexorable law under which, 
if there are two kinds of currency in a country, and one is 
better than the other, the better one leaves the country and 
the p)oorer one remains. That has come to be an axiom, and 
I ought not to have to argue about it. The inevitable result 
of the inflation of our Government currency will be the appli- 
cation of that unquestioned law. 

It is stated in another form in this way: gold always 
leaves a country in which the amount of currency exceeds the 
demands of legitimate business. That is another way of stat- 
ing the same law. It is just as absolute, just as certain, just 
as irrefutable, just as universally accepted, as the other form 
of stating it, and it describes exactly what is going to happen 
to us. 

Another form of stating it, one that our old friend Professor 
Sumner has used as the result of his study of the history of 
American currency, is that gold always tends to move away 
from the country of high prices to the country of low prices, 
because in the country of low prices it avails more; it buys 
more; it is of higher value in proportion to commodities than 
in the country of high prices. It is inevitable; and of course 
the effect of inflation is to work prices up, up, up, and the gold 
goes out, and you cannot stop it. 

You cannot control the operation of these laws. You 
could kill the people who are engaged in business; you could 
take them out of their business and shut them up in jail, and 
perhaps you could stop the operation of the law then by 
stopping the business; but there is no other way. 



356 GOVERNMENT AND CITIZENSHIP 

Mr. President, as against the working of that law, your 
raising the rate of interest, or your attempting to sell Govern- 
ment securities, will be just as ineffective as Mrs. Parting- 
ton's mop against the Atlantic Ocean, because you do not 
bring into operation your forces until the damage is done. 
\Mien confidence is lost, you can raise the rate of interest to 
the roof, but you do not bring the money until you restore 
confidence. In proportion as confidence decreases, you have 
to add to your rate of interest insurance against loss; and 
long before we wake up from our dream of prosperity upon 
inflated currency, the sources from which the gold will have 
to come to keep us from catastrophe will have lost their 
confidence, so that no rate of interest will bring the money 
but a rate so high as to ruin American business. 

So as to the sale of Government securities. Ah, yes; now, 
behind the system under which we are working, and under 
which we have grown so great and strong, stands always the 
Government of the United States, with its credit unimpaired, 
with its solvency undoubted, always ready to come to the 
rescue by the sale of its securities to bring gold. This bill pro- 
poses, however, to put in pawn the credit of the United 
States; and when your time of need comes, it is the United 
States that is discredited by the inflation of its demand 
obligations which it cannot pay. 

Mr. President, I ought not to be obliged to argue about 
inflation. The country has rendered its judgment upon it. 
The American people closed the case for and against inflation 
when, by the vast preponderance of their approval, they 
sustained the veto of the inflation bill by President Grant, in 
1874. The American people decided the case when they 
sustained the courage and patriotism of Grover Cleveland in 
putting at stake all his future upon compelling the repeal of 
the Silver Purchase Act in 1893. The American people 
decided the case when, in 1896, they elected Mr. McKinley as 



BANKING AND CURRENCY 357 

against the protagonist of the fundamental ideas contained 
in the sixteenth section of this bill; and again in 1900, when 
they reelected President McKinley against the same opponent. 

Now, Mr. President, a Democratic majority has been 
elected by the people, not up>on this issue, but in a campaign 
which proceeded upon subjects, questions and matters of 
interest far removed from the old, old question of sound 
money or inflated currency. Coming into power, the Demo- 
cratic party, without any mandate from the people of the 
United States, without any authority from the people of the 
United States, undertakes to reverse the oft-repeated judg- 
ment of the people of the United States upon this question. 
In probably a vain appeal from the judgment of the Demo- 
cratic caucus and their violation of the duty imposed upon 
them by the repeated decisions of the people of the country, 
I protest against the employment of power thus obtained 
for such a purpose as this. 

Mr. President, my colleague has observed that power is 
given to the central reserve board to regulate the issue of cur- 
rency. That is true; but I observed at the time that we have 
our duty to perform, and that we cannot discharge it by 
transferring it to anybody else. Always up to this time the 
American Congress has attempted to perform its own duty in 
regard to the vital matter of currency. Always the American 
Congress, when it did not want inflation, has undertaken so 
to frame its legislation that its injimctions and requirements 
would prevent inflation. Now it is proposed that we shall 
make it possible that an appointive officer, or a body of 
appointive officers, shall bring upon the country the result of 
inflation; and we are to appease our own consciences by 
assuming that that board will perform the duties that we 
ought to perform. 

Mr. President, I do not purpose to question the probable 
honesty, good faith, or public spirit of the men who may be 



358 GOVERNMENT AND CITIZENSHIP 

appointed members of the central reserve board under this 
bill. But, sir, this bUl in the provision which I have been 
discussing, and in another provision to which I shall presently 
allude for a brief moment, exhibits an expression of the 
opinion of a very great leader of the Democratic party, for 
whom I have a strong personal regard, whom I respect and 
admire, and in whose sincerity of purpose and good faith I 
firmly believe. Yet, Mr. President, I am convinced that his 
economic theories are false, and, if put into effect, would be 
most injurious to our country. 

Those theories have been twice expressly repudiated by the 
people of the country. Twice those specific theories, the 
same theories of finance, make their appearance in this bUl; 
and, as a matter of course, we ought to assume that any cen- 
tral reserve board appointed to carry out the terms of the bill 
will be appointed under the same dominant, commanding, 
and irresistible influence. 

Mr. President, a central reserve board appointed under the 
influence of the same power that put into this bill the present 
sixteenth section, will be bound, if they are honest and true 
and faithful, to proceed in accordance with the theories that 
our people rejected in 1896 and 1900. They must. The 
authors of the bill are bound in good faith to appoint men 
who are in sympathy with them to carry it out; and the men 
in sympathy with them will have in good faith to carry out 
this bill under the belief that it is best for the people of the 
country that the Government of the United States shall 
furnish unlimited money to the p>eople of the United States. 

I say that this bill presents the financial heresy twice repu- 
diated by the people of the United States. I say that the 
central reserve board appointed under this bill will have to 
represent that very heresy. If this bill passes as it stands, 
America stands to lose all we saved when Grant vetoed the 
inflation bill, all we saved when Grover Cleveland abolished 



BANKING AND CURRENCY 359 

the silver purchase, all we saved when we elected McKinley, 
all the Republicans, all the gold Democrats saved when they 
helped in the repudiation of the vital principle which has been 
put into this bill. 

The country has become so deadened by the assaults of 
sound, so wearied of discussion, so confused and dazed by 
complicated figures, that this vital and fateful reversal of the 
American policy is proceeding with but little attention. But 
unless all our history of human experience and all the pre- 
vious judgments, the real judgments, of the American people 
upon this subject have been wrong, we stand to learn by hard 
experience what has really been done by the sixteenth section 
of this currency bill. 



A PERSONAL STATEMENT 

REMARKS IN THE SENATE OF THE UNITED STATES, 
DECEMBER 16, 1913 

On December 13, 1913, Mr. Root made the preceding speech upon the bill to 
provide for the establishment of federal reserve banks, to furnish an elastic currency, 
and for other purposes. Upon the delivery of this speech. Senator Gallinger, of 
New Hampshire, gave to the public press a statement advocating Mr. Root's 
nomination as the Republican candidate for the presidency in 1916, from which 
the following passage is quoted: 

The remarkable speech on the currency question delivered by Senator Root 
today stamps him as the ablest advocate of sound economic and financial 
doctrines. His wonderful powers of analyzing the fundamental problems that 
He at the foimdation of our governmental structure were never more marked 
than today. His discussion of the financial bill was brilliant, interesting, and 
imanswerable. Unless the Republican party nominates Senator Root as their 
next candidate for President of the United States, they will miss the greatest 
opportunity that has ever presented itself to that party. 
In view of the wide publicity given by the press to Senator Gallinger's statement, 
and the approval which it seemed to find in many quarters, Mr. Root felt obliged to 
take notice of the proposal on the floor of the Senate, and frankly to state the rea- 
sons which, in his opinion, should militate against his nomination as the presidential 
candidate of his party. 

Mr. Root's personal statement, elicited by that of Senator Gallinger and by 
allusions to it on the floor of the Senate, was made on December 16, 1913, and was 
as follows: 

BEFORE passing to another amendment, I wish to make 
some observations regarding the several replies which 
were made yesterday to the argument I made last Saturday 
regarding what seemed to me to be the possibilities of 
inflation under the pending currency bill. 

I am going to depart from the custom to which my feeling 
ordinarily holds me and make a remark regarding some per- 
sonal allusions which occurred in the speeches of two, perhaps 
three, of the Senators who replied to me. Those Senators saw 
fit to intimate that my motive in making the argument 
I did make was not merely the desire to contribute what I 
could to the fair and intelligent discussion of the merits 
of this bill, but that there was also a motive of personal 

861 



362 GOVERNMENT AND CITIZENSHIP 

ambition coloring my judgment and affecting my utterances. 

That is not a very cogent argument in itself, for what a 
Senator says here is to be judged by the weight of what is 
said rather than by any motives he may have in sajong it. 
Nevertheless, I have this to say about it, and I should not 
say it were it not for the fact that a pubhc statement has 
appeared coming from the senior Senator from New Hamp- 
shire, and that public statement has been commented upon 
in this chamber and in the public press, the substance of the 
statement being that under some circumstances I might be 
a candidate for the presidency of the United States. 

I shall always be grateful for the friendship and the good 
opinion of the Senator from New Hampshire, and for the 
too-partial friendship which has led other gentlemen to 
express agreement with him; but I ask my friends upon the 
other side who do not agree with him and in whose minds 
a suspicion of personal ambition upon my part may detract 
from the weight of my utterances, to remember the fact that 
before this Administration comes to a close and the next 
President has been inaugurated, I shall have reached the age 
of seventy-two years. Before the next Administration comes 
to a close I shall have passed the age of seventy-six years. It 
is manifestly impossible that I should be the President of the 
United States. I could not render the service. I would not 
undertake it. I would not accept the nomination. I could 
not accept the office. 

Such suggestions are and can be merely a graphic way of 
expressing the feelings of friendship and approval. My 
political career and my public career are drawing to a close. 
No pohtical ambition whatever finds its place in the horizon 
of my future. I look with sympathy and interest upon 
the younger and more vigorous men who surround me, 
who rightfully cherish ambitions for place and usefulness 
of service for our country, but I have no part in them. 



HOW TO PRESERVE THE LOCAL SELF- 
GOVERNMENT OF THE STATES 

A BRIEF STUDY OF NATIONAL TENDENCIES 

SPEECH AT THE DINNER OF THE PENNSYLVANIA SOCIETY 
IN NEW YORK, DECEMBER 12, 1906 

THIS gathering peculiarly represents two ancient com- 
monwealths, each looking back to a century and a half 
of colonial history before the formation of the American 
Union, each possessed of strong individuality, derived from 
the long practice of self-government, and both conspicuous 
among all the States for leadership in population and wealth, 
for commerce and manufacture, for art and science, and for 
the priceless traditions of great citizens in former genera- 
tions. It seems appropriate to make here some observations 
upon a subject which is much in the minds of thoughtful 
Americans in these days. 

What is to be the future of the States of the Union under 
our dual system of constitutional government ? 

The conditions under which the clauses of the Constitu- 
tion distributing powers to the national and state govern- 
ments are now and henceforth to be applied, are widely 
different from the conditions which were or could have been 
within the contemplation of the framers of the Constitution, 
and widely different from those which obtained during the 
early years of the Republic. When the authors of The 
Federalist argued and expounded the reasons for union and 
the utility of the provisions contained in the Constitution, 
each separate colony transformed into a state was complete 
in itself and suflBcient to itself, except as to a few exceedingly 
simple external relations of state to state and to foreign 

S6S 



364 GOVERNMENT AND CITIZENSHIP 

nations; from the origin of production to the final consump- 
tion of the product, from the birth of a citizen to his death, 
the business, the social and the poHtical Hfe of each separate 
community began and ended for the most part within the 
limits of the state itself; the long time required for travel 
and communication between the different centers of popula- 
tion, the difficulties and hardships of long and laborious 
journeys, the slowness of the maUs, and the enormous cost of 
transporting goods, kept the people of each state tributary 
to their own separate colonial center of trade and influence, 
and kept their activities within the ample and sufficient juris- 
diction of the local laws of their state. The fear of the 
fathers of the RepubHc was that these separate and seK- 
sufficient communities would fall apart, that the Union would 
resolve into its constituent elements, or that, as it grew in 
population and area, it would split up into a number of 
separate confederacies. Few of the men of 1787 would have 
deemed it possible that the Union they were forming could 
be maintained among eighty-five millions of people, spread 
over the vast expanse from the Atlantic to the Pacific and 
from the Lakes to the GuU. 

Three principal causes have made this possible. 

One cause has been the growth of a national sentiment, 
which was at first almost imperceptible. The very difficulties 
and hardships to which our nation was subjected in its eariy 
years, the injuries to our commerce, and the insults and 
indignities to our flag on the part of both of the contestants 
in the great Napoleonic wars, served to keep the nation and 
national interests and national dignity constantly before the 
minds and in the feelings of the people. As the tide of emi- 
gration swept westward, new states were formed of citizens 
who looked back to the older states as the homes of their 
childhood and their affection and the origin of their laws and 
customs, and who never had the peculiar and special, separate 



SELF-GOVERNMENT OF THE STATES 365 

political life of the colonies. The Civil War settled the su- 
premacy of the nation throughout the territory of the Union, 
and its sacrifices sanctified and made enduring that national 
sentiment. Our country as a whole, the noble and beloved 
land of every citizen of every state, has become the object of 
pride and devotion among all our people, North and South, 
within the limits of the proud old colonial commonwealths, 
throughout the vast region where Burr once dreamed of a 
separate empire dominating the valley of the Mississippi, 
and upon the far-distant shores of the Pacific; and by the 
side of this strong and glowing loyalty to the nation, senti- 
ment for the separate states has become dim and faint in 
comparison. 

The second great influence has been the knitting together 
in ties of common interest, of the people forming the once 
separate communities through the working of free trade 
among the states. Never was a concession dictated by en- 
lightened judgment for the common benefit, more richly 
repaid than that by which the states surrendered in the 
Federal Constitution the right to lay imposts or duties on 
imports or exports without the consent of Congress. To it 
we owe the domestic market for the products of our farms 
and forests and mines and factories without a parallel in 
history, and an internal trade which already exceeds the 
entire foreign trade of all the rest of the world; and to it we 
owe in a high degree the constant drawing together of all 
parts of our vast and diversified country in the bands of 
common interest and in the improving good understanding 
and kindly feeling of frequent intercourse. 

The third great cause of change is the marvelous develop- 
ment of facilities for travel and communication produced by 
the inventions and discoveries of the past century. The 
swift trains that pass over our two hundred and twenty 
thousand miles of railroad, the seventy millions of messages 



366 GOVERNMENT AND CITIZENSHIP 

that flash over the more than fourteen hundred thousand 
miles of telegraph wires, the conversations across vast spaces 
through our more than four million four hundred thousand 
telephone instruments, take no note of state lines; they have 
broken down the barriers between the separate communities 
and they have led to a reorganization of the business and 
social life of the people of the United States along lines which, 
for the most part, altogether ignore the boundaries of the 
states. I left the borders of Virginia this afternoon and 
traversed Maryland, Delaware, Pennsylvania, and New 
Jersey to the state of New York, and, barring accident, I 
shaU breakfast tomorrow morning again on the shore of the 
Potomac. The time required for this journey would hardly 
have sufficed for an ordinary carriage drive from the adjoin- 
ing county of Westchester a hundred years ago. Any one of 
us can go now into a neighboring room in this hotel and talk 
with a friend in Boston or Chicago and recognize his voice 
and transact business which formerly would have required 
months to accomplish, if it could have been done at all. The 
lines of trade, of financial operation, of social intercourse, of 
thought and opinion that radiate from the great centers of 
Hfe in our country such as Boston and New York, and Phila- 
delphia and Baltimore, and Chicago and St. Louis, and New 
Orleans and San Francisco, and many another great city, are 
perfectly regardless of state distinctions. Our whole life has 
swung away from the old state centers and is crystaUizing 
about national centers; the farmer harvests his grain and 
fattens his cattle, not as formerly, with reference to the wants 
of his own home community, but for markets thousands of 
miles away; the manufacturer operates his mills and his 
factories to meet the needs of far-distant consumers; the 
merchant has his customers in many states; all — the farmer, 
the manufacturer, the merchant, the laborer — look for the 
supplies of their food and clothing, not to the resources of 



SELF-GOVERNMENT OF THE STATES 367 

the home farm, or village, or town, but to the resources of the 
whole continent. The people move in great throngs to and 
fro from state to state and across states; the important 
news of each community is read at every breakfast table 
throughout the country; the interchange of thought and 
sentiment and information is universal; in the wide range 
of daily life and activity and interest the old lines between 
the states and the old barriers which kept the states as 
separate communities are completely lost from sight. The 
growth of national habits in the daily life of a homogeneous 
people keeps pace with the growth of national sentiment. 

Such changes in the life of the people cannot fail to pro- 
duce corresponding political changes. Some of those changes 
can be plainly seen now in progress. It is plainly to be seen 
that the people of the country are coming to the conclusion 
that in certain important respects the local laws of the 
separate states, which were adequate for the due and just 
regulation and control of the business which was transacted, 
and the activity which began and ended within the limits 
of the several states, are inadequate for the due and just 
control of the business and activities which extend through- 
out all the states, and that such power of regulation and 
control is gradually passing into the hands of the National 
Government. Sometimes by an assertion of the interstate 
commerce power, sometimes by an assertion of the taxing 
power, the National Government is taking up the perfor- 
mance of duties which under the changed conditions the 
separate states are no longer capable of adequately perform- 
ing. The federal anti-trust law, the anti-rebate law, the 
railroad rate law, the meat-inspection law, the oleomargarine 
law, the pure-food law, are examples of the purpose of the 
people of the United States to do through the agency of the 
National Government the things which the separate state 
governments formerly did adequately but no longer do 



368 GOVERNMENT AND CITIZENSHIP 

adequately. The end is not yet. The process that interweaves 
the Hfe and action of the people in every section of oiu* coun- 
try with the people in every other section, continues and will 
continue with increasing force and effect; we are urging 
forward in a development of business and social hfe which 
tends more and more to the obhteration of state lines and 
the decrease of state power as compared with national power; 
the relations of the business over which the Federal Govern- 
ment is assuming control, of interstate transportation with 
state transportation, of interstate commerce with state com- 
merce, are so intimate and the separation of the two is so 
impracticable, that the tendency is plainly toward the practi- 
cal control of the National Government over both. New 
projects of national control are mooted; control of insurance, 
uniform divorce laws, child-labor laws, and many others 
affecting matters formerly entirely within the cognizance of 
the state are proposed. 

With these changes and tendencies, in what way can the 
power of the states be preserved ? 

I submit to your judgment, and I desire to press upon 
you with all the earnestness I possess, that there is but one 
way in which the states of the Union can maintain their 
power and authority imder the conditions which are now 
before us, and that way is by an awakening on the part of 
the states to a realization of their own duties to the country 
at large./ Under the conditions which now exist, no state 
"can live unto itself alone, and regulate its affairs with sole 
reference to its own treasury, its own convenience, its own 
special interests. Every state is bound to frame its legislation 
and its administration with reference not only to its own 
special affairs, but with reference to the effect upon all its 
sister states, as every individual is bound to regulate his 
conduct with some reference to its effect upon his neighbors. 
The more populous the community and the closer individuals 



I 



SELF-GOVERNMENT OF THE STATES 369 

are brought together, the more imperative becomes the 
necessity which constrains and limits individual conduct. 
If any state is maintaining laws which afford opportimity and 
authority for practices condemned by the public sense of 
the whole country, or laws which, through the operation 
of our modern system of communications and business, are 
injurious to the interests of the whole country, that state is 
violating the conditions upon which alone its power can be, 
preserved. If any state maintains laws which promote and 
foster the enormous overcapitalization of corporations con- 
demned by the people of the country generally; if any state 
maintains laws designed to make easy the formation of trusts 
and the creation of monopolies; if any state maintains laws 
which permit conditions of child labor revolting to the sense 
of mankind; if any state maintains laws of marriage and 
divorce so far inconsistent with the general standard of the 
nation as violently to derange the domestic relations, which 
the majority of the states desire to preserve, that state is 
promoting the tendency of the people of the country to seek 
relief through the National Government and to press for- 
ward the movement for national control and the extinction 
of local control. The intervention of the National Govern- 
ment in many of the matters which it has recently undertaken 
would have been wholly imnecessary if the states themselves 
had been alive to their duty toward the general body of the 
country. 

y*Tt is useless for the advocates of state rights to inveigh 
against the supremacy of the constitutional laws of the 
United States or against the extension of national authority 
in the fields of necessary control where the states themselves 
fail in the performance of their duty. The instinct for self- 
government among the people of the United States is too 
strong to permit them long to respect any one's right to 
exercise a power which he fails to exercise. The govern- 



370 GOVERNIMENT AND CITIZENSHIP 

mental control which they deem just and necessary they will 
have. It may be that such control would better be exercised 
in particular instances by the governments of the states, but 
the people will have the control they need, either from the 
states or from the National Government; and if the states 
fail to furnish it in due measure, sooner or later constructions 
of the Constitution will be found to vest the power where it 
will be exercised — in the National Govemmenty The true 
and only way to preserve state authority is to be found in 
the awakened conscience of the states, their broadened views 
and higher standard of responsibiHty to the general pubKc; 
in effective legislation by the states, in conformity to the 
general moral sense of the country; and in the vigorous 
exercise for the general public good of that state authority 
\vhich is to be preserved. / 



i 



\M 



ADDRESS AT THE CONFERENCE OF THE 
GOVERNORS OF THE STATES 

WHITE HOUSE. MAY 13-15. 1908 

On October 3, 1907, the Inland Waterways Commission, of which Senator 
Theodore E. Burton was chairman, recommended to President Roosevelt that he 
call a conference of the governors of the states of the Federal Union to consider the 
policy of " conserving those material resources on which the permanent prosperity 
of our country and the equal opportunity of all our people must depend." Upon 
receipt of this communication. President Roosevelt decided to comply with the 
formal request; and in the following month he wrote letters of invitation to 
the governors of all the states and territories to meet at the White House 
on May 13-15, 1908, in a Conference on the Conservation of National Resources. 
The invitation was also extended to senators and representatives, to the justices 
of the Supreme Court, the members of the Cabinet, and many private business 
organizations. 

In his letters, the President said: "The conservation of natural resources is our 
fundamental problem. Unless we solve that problem, it will avail us little to solve 
all others." All the governors of the states and territories accepted the invitation, 
and attended the conference, except three who were prevented by ill-health or 
pressure of public affairs. 

A conference of representatives of Mexico, Canada, and Newfoundland was held 
in Washington, February 18, 1909, and on February 19, 1909, Robert Bacon, Secre- 
tary of State, instructed the American diplomatic officers abroad to invite the 
Governments to which they were accredited to send delegates to an international 
Conservation Conference to be held at The Hague. The projected conference did 
not take place, but a conference on the conservation of natural resources was held 
at Washington, December 27, 1915 — January 8, 1916, in connection with the Second 
Pan-American Scientific Congress. 

The following address was delivered at the Conference of 1908: 

T "K THAT occurs to me today, in response to your very 
V V kmdcalluponme,is what comes naturally to the mind 
of the oflBcer who is the official medium of communication 
between the Government of the United States and the 
governments of the states. 

Forty-four sovereign states are represented here, I see by 
the newspapers; all sovereigns here on the invitation of the 
Executive of the sovereign nation, the United States. No 

871 



372 GO\^RNMENT AND CITIZENSHIP 

one can over-estimate the importance of maintaining each 
and every one of the sovereignties of the states, and no one 
can over-estimate the importance of maintaining the sov- 
ereignty of the nation. 

The nation cannot perform the fmictions of the state 
sovereignties. If it were to midertake to perform those 
fmictions, it would break down. The machinery would not 
be able to perform the duty. The pressure is already very 
heavy upon national machinery to do its present work. 

I feel deeply impressed, however, with the idea that the 
forty-six sovereign states, in the performance of their duties 
of government, are lagging behind the stage of development 
which the other sovereignties of the earth have reached. 
As the population of our states increases, as the relations 
between the people of each state and other states grow more 
frequent, more complicated, more important, more intricate, 
what every state does becomes more important to the people 
of every other state. 

If you look at the international Hfe of the world, you will 
see that the correspondence between the nations is continu- 
ally increasing, not in the letter-writing sense, but in the 
intercommunication and understanding about the things that 
they should do in concert for the benefit of all their people. 

Scores and hundreds of conferences and congresses are 
being held under government auspices to regulate the action 
of the different nations of the earth. England and France 
and Germany and Spain, indeed all the nations of Europe, 
are considering the conduct of their governments with 
reference to the effect which their action will have upon the 
people of each other country. 

Now the states, in the exercise of their sovereignty, in the 
exercise of the powers reserved to them, rest under the same 
kind of duty, — a duty that forbids any state to Hve unto 
itself alone. 



CONFERENCE OF GOVERNORS 373 

The Constitution of the United States prohibits the states 
from making any agreement with each other without the 
consent of Congress; but you can make any number of 
agreements with the consent of Congress. Why should not 
the powers that are reserved to the state sovereignties be 
exercised by those sovereignties, with a wise regard for the 
common interest, upon conference, upon complete under- 
standing of the duties of good neighborhood, under a firm 
resolve to make it wholly unnecessary that this continual 
pressure to force the National Government into the per- 
formance of the duties that the states ought to perform 
should continue ? 

It is high time that the sovereign states of the Union 
should begin to perform their duties with reference not only 
to their own local individual interests, but with reference to 
the common good. 

I regard this meeting as marking a new departure, the 
beginning of an era in which the states of the Union will 
exercise their reserved sovereign powers upon a higher plane 
of patriotism and love of country than has ever existed before. 



IMPORTANCE OF SEEKING REFORM 
THROUGH STATE GOVERNMENTS 

REMARKS AT THE TENTH ANNUAL DINNER OF THE 

NATIONAL CIVIC FEDERATION. NEW YORK, 

NOVEMBER 23, 1909 

I HAVE a decree by the president of the National Civic 
Federation Hmiting my hours of labor on this day to 
five minutes and a contract in violation of the Sherman Act 
to restrain my output. I have come here welcoming the 
opportunity to express my sympathy with the purposes and 
my belief in the usefulness of this organization. The essential 
process of free government is free discussion. Discussion 
confined to people of the same way of thinking, with the same 
interests, the same purposes and prejudices, tends only to 
strengthen their common difference from all others and to in- 
crease the divergence between different groups of our people; 
but discussion, information, sincere and earnest attempt to 
get at each other's minds and to learn as well as to teach 
among people with different environments, different specific 
interests and different points of view, leads to that common 
public opinion whose expression in the end comes the nearest 
to being the voice of God that man has ever attained. The 
essential quality of that discussion which makes a free people 
competent to govern itself is self-restraint, respect for the 
opinions and the wishes, aye, for the prejudices and the mis- 
takes of others, a sincere desire for harmony of view, for 
reconciliation of difference and for the reaching of the right 
and just conclusion. As between individuals, as between 
groups of citizens, as between nations, isolation is the parent 
of misunderstanding, of hatred and of strife. Conference, 

375 



376 GOVERNMENT AND CITIZENSHIP 

mutual knowledge, the softening that comes from meeting 
our fellow-men face to face — that is the process by which 
good citizenship and sound and rational judgment result. 

I wish, also, to express my sympathy with the prevailing 
opinion I perceive here upon the specific subject of your 
recent discussion. It seems to me that our present system of 
dealing with those injuries that come to the employees in our 
great industrial life is fooHsh, wasteful, ineffective and bar- 
barous. To have a great enlightened nation ignoring the fact 
that in all industries there are accidents, and that every 
crushed foot, every broken arm, every ruined life, is expended 
in the business, is a part of the cost of doing the business, 
is discreditable. All accidents, all injiu-ies are subject to the 
law of average. The cost of support, which is made necessary 
by the injuries suffered in a business, is just as much a part 
of the cost of the business as the tools that are worn out and 
the material that is consumed. It ought to be paid for by the 
business as a part of that cost and not left to the charity of 
the nation at large. It ought to be paid for so that the man, 
who has spent his life and his strength and his limbs as a 
necessary part of doing the business, will feel that he is being 
paid in a way that preserves his manhood instead of being 
thrown upon charity in a way that destroys it. I hope we 
have begun on the pathway that will lead to more reasonable 
and rational treatment of this subject. 

I cannot altogether agree with the view taken by Mr. 
Elingsley as to throwing the burden of dealing with insurance 
upon the National Government. I have long thought that in 
the case of Paul v. Virginia,^ which decided the question to 
which he referred, the Supreme Court of the United States 
was right. If, however, there were no other question but the 
question whether the National Government or the State 
Governments should deal with insiu'ance, it might not be so 

1 8 WaUace, p. 168. 



REFORM THROUGH STATE GOVERNMENTS 377 

important and I might feel willing to say, as Mr. Jejfferson 
suggested when he bought Louisiana, that the advocates of 
his view of constitutional interpretation ought to be willing 
to suspend their views for a little while for a particular and 
useful purpose. But you cannot confine the proposal to 
insurance alone. The framework of our Government aimed 
to preserve at once the strength and protection of a great 
national power, and the blessing and the freedom and the 
personal independence of local self-government. It aimed to 
do that by preserving in the Constitution the sovereign 
powers of the separate states. Are we to reform the Consti- 
tution ? If we do it as to insurance, we must do it as to a 
hundred and thousand other things. The interdependence of 
life, wiping out state lines, the passing to and fro of men and 
merchandise, the intermingling of the people of all sections of 
our country without regard to state lines, are creating a 
situation in which from every quarter of the horizon come 
cries for federal control of business which is no longer con- 
fined within the limits of separate states. 
^^'^''b^^ we to reform our constitutional system so as to put 
in federal hands the control of all the business that passes 
over state lines "i If we do, where is our local self-govern- 
ment ^ If we do, how is the central Government at Wash- 
ington going to be able to discharge the duties that will be 
imposed upon it ? Already the administration, already the 
judicial power, already the legislative branches of our Govern- 
ment, are driven to the limit of their power to deal intelli- 
gently with the subjects that are before them. This country 
is too great, its population too numerous, its interests too 
vast and complicated already, to say nothing of the enormous 
increases that we can see before us in the future, to be 
governed as to the great range of our daily affairs, from one 
central power in Washington. After all, the ultimate object 
of all government is the home, the home where our people 



378 GOVERNMENT AND CITIZENSHIP 

live and rear their children, with its individual independence, 
its freedom; and I am not willing, for the sake of facihtating 
transaction of any kind of business, to overturn limitations 
that have been set by the Constitution — wisely set — 
between the powers of the National and State Governments. 
Great is our nation. Let it exercise its constitutional 
powers to the fullest limit, but do not let us in our anxiety 
for efficiency cast away, break down, reject, those limits 
which save to us the control of our homes, of our own domes- 
tic affairs and of our own local governments. For there, in 
the last analysis, under the protecting power of our great 
nation, there must be formed the character of free, indepen- 
dent, hberty-loving citizens upon whom our RepubHc must 
depend for its perpetuity. 



THE SPIRIT OF SELF-GOVERNMENT 

ADDRESS AT THE ONE HUNDRED AND FORTY-FOURTH ANNI- 
VERSARY BANQUET OF THE CHAMBER OF COMMERCE OF THE 
STATE OF NEW YORK, NOVEMBER 21, 19158 

I THANK you with entire sincerity and much feeling for 
your reception, and for the kind expressions which old 
friendship and the association of a lifetime have made it 
possible for your president to utter. However old I may 
come to be, I shall never pass out from under the impression 
of reverence for the men who forty to fifty years ago made 
the Chamber of Commerce; and first among them in my 
memory stands the noble and inspiring presence of the father 
of your present president.^ 

I thought of those men when some dozen years ago, a 
great excitement had carried a large number of people to the 
barren and uninhabited land on the shores of the Bering 
Straits. Fifteen thousand men found themselves there with- 
out government, without law, and without organization. In 
characteristic American fashion they proceeded to organize 
a Chamber of Commerce of Nome. And they called upon 
the War Department to send them some officers and men to 
enable them to execute the decrees of the Chamber of Com- 
merce for the benefit of the people on that shore. The call 
was responded to after the fashion in which the American 
army is all the time doing odd jobs for the promotion of peace 
and order; and the Chamber of Commerce speedily grew 
into an organized government. 

The Chamber of Commerce of New York has been render- 
ing very much the same kind of service during all these one 
hundred and forty-four years. It has been giving impetus 

* Horace B. Claflin, founder of the firm of H. B. Claflin & Co., of New York, and 
father of John Claflin, president of the Chamber of Commerce in 1912. 



380 GOVERNMENT AND CITIZENSHIP 

and form to public sentiment, the effects of which have been 
put in operation through the ordinary channels of govern- 
mental institutions. The institutions themselves are empty 
forces, but for the sentiment behind them; and the sentiment 
behind them is furnished by such men as I see beforeime 
here and by such institutions as this Chamber of Commerce. 
The real government of the country rests with such institu- 
tions and the men who compose their membership. 

My friends, the noise and excitement of a great presidential 
campaign is over; the stress and strain, the over-statements, 
the warping of judgment by personal considerations and by 
old associations, have passed into memory, and we are all 
at rest; and during this period of rest, which in this active 
and vigorous and progressive country must be but short, it 
seems to be a good time for national introspection. 

I have been thinking whether passing beyond and behind 
aE the issues that we have been discussing, we can answer 
in the affirmative or the negative a crucial question, under- 
lying them all, and that is this: Are we advancing in our 
capacity for self-government ? Are we maintaining our capa- 
city for self-government ? 

AH the rest is unimportant compared with that. If we 
have the spirit of a true seK-goveming people, whichever way 
we decide the questions of the moment, we come through 
right. TSTiatever we do about the tariff or about the trusts, 
or about the raihoads, or about wages, or about corporations, 
or whatever we do about any of the issues before the Ameri- 
can people, if we have at heart the true spirit of a free govern- 
ing democracy we come through right. What is it ? What 
is the spirit of a free self-governing democracy ? What are 
its essentials, and have we them to a greater or a less degree ? 
What is the tendency, is it up or down ? 

Of com-se a people to be self-governing must have inde- 
j>endence of character and courage; that we know we have. 



THE SPIRIT OF SELF-GOVERNMENT 381 

Throughout the length and breadth of our land the Ameri- 
cans have an attitude in which one recognizes no social or 
political superior, in which every man knows himself to be a 
man of equal manhood with all others and has the courage to 
speak his opinions and to maintain them; and we thank God 
for that. 

But that is not enough; that is not all. All histories of 
wild and savage people, all the histories of lawless and un- 
disciplined men, all the histories of civil wars and revolu- 
tions, all the histories of discord and strife which checks the 
onward march of civilization and holds a people stationary 
until they go down instead of going up, admonish us that it 
is not enough to be independent and courageous. 

Self-governing people must have the spirit which makes 
them self -controlled, which makes every man competent and 
willing to govern his impulses by the rule of declared prin- 
ciple. And more than that, men in a self-governed democ- 
racy must have a love of liberty that means not merely one*s 
own liberty but others' liberty. We must respect the opinions 
and the liberty of the opinions of our countrymen. That 
spirit excludes hatred of our opponents. That spirit excludes 
a desire to abuse, to villify, to destroy. All of us in foreign 
lands have felt the blood rush to the head, and felt the heart 
beat quicker, felt a suffusion of feeling upon seeing our coun- 
try's flag floating in strange ports and in distant cities. That, 
my friends, is but a false sentiment, unless it carries with it 
a love not only for the flag but for the countrymen under 
the flag. True love of country is not an abstraction. It 
means a little different feeling toward every American because 
he is American. It means a desire that every American 
shall be prosperous; it means kindly consideration for his 
opinions, for his views, for his interests, for his prejudices, 
and charity for his follies and his errors. The man who loves 
his country only that he may be free does not love his 



382 GOVERNMENT AND CITIZENSHIP 

country. He loves only himself and his own way and that 
is not self-government, but is the essence of despotism. 

Now as to that feeling I wiU not say that we have gone 
backward, but I wiU say, that there is serious cause for 
reflection on the part of aU Americans. 

Our life has become so complicated, the activities of our 
country so numerous and so vast, that it is very difficult for 
us to understand what our countrymen are doing. The 
cotton planters understand each other, the wheat farmers 
understand each other, the importers understand each other, 
the bankers understand each other, but there are vast masses 
of the people of our country who totally misunderstand 
others of our people, and that misunderstanding is counter to 
the spirit which I have attempted to describe as so necessary 
to real self-government. 

Misunderstanding! and when I say misunderstanding it 
impHes erroneous ideas; for there are hundreds of thou- 
sands of people, outside the great industrial communities, 
who think you are a den of thieves, and there are hundreds 
of thousands of people who think that the manufacturers of 
the country are not better than a set of confidence men. 
"Why, we have before us now great and serious questions 
regarding the financial problems of the country, and this is 
what stands in the way of their solution : It is that the men 
who understand the finances of the country, the bankers, 
and the merchants engaged in great operations, are under 
suspicion. Great bodies of people will not accept what 
they say regarding the subject of finance, a subject compli- 
cated by all the currents and movements of finance through- 
out the world; they will not accept what the experts say, 
what the men who understand the subject say, because they 
do not believe their motives are honest. So that the only 
one who can be heard is the man who does not understand 
the subject. How are we to reach any conclusion in that 



THE SPIRIT OF SELF-GOVERNMENT 383 

way? On the other hand there are many in this room tonight 
who way down in their hearts beHeve that great bodies of 
the American people really want to destroy their business 
and confiscate their property, that they are enemies to the 
men who are carrying on the vast business essential to our 
prosperity. 

Now, neither is true. One misunderstanding leads to 
conduct which in some respects seems to justify another mis- 
understanding. Nobody in this country wants to destroy 
business, wants to destroy prosperity. I say nobody. Of 
course, there are always hangers-on in every country who 
would like to destroy everything in the hope of picking up 
the pieces. But speaking of the great body of the people, 
they do not want to destroy prosperity; and when they do 
things, when they vote for measures, when they elect repre- 
sentatives, leading you to think that they want to destroy 
prosperity, it is because they misunderstand you, and you 
misunderstand them. 

There is nothing more important today, than that, by edu- 
cation and the spread of ideas, such misunderstanding shall 
be disposed of and done away with, and that all Americans 
shall come to the spirit of popular government in which every 
American desires the prosperity and the happiness of every 
other American, every American naturally feels a trust in 
all Americans, because they are all his brothers, fellow- 
inheritors of the great system of constitutional law for the 
preservation of liberty and justice, of the same great tradi- 
tions, the same noble ideals of human freedom and human 
opportunity. 

There is one other essential to the spirit of self-govern- 
ment, and that is justice. The manufacturer, the employer 
of labor, who is unwilling to be just to his workingmen is false 
to the ideals of his country. The laborer who, in the com- 
paratively new found power of organization, is unjust to his 



384 GOVERNMENT AND CITIZENSHIP 

employer is false to those great traditions in which rests the 
liberty of all labor. 

The willingness to do justice in a nation to every brother 
of our common land is the ideal of self-government. Further 
than that, the willingness to do justice as a nation is the true 
conception of self-government. That rude and bumptious 
willingness to insult and deride, the result of ignorance, is 
wholly false to the true dignity and the true spirit of popular 
self-government. 

We are now approaching a question which will test the 
willingness of the American people to be true to the ideals of 
seK-govemment and show that a democracy can be honor- 
able and just. Sixty-odd years ago Great Britain and the 
United States were owners of a great territory extending 
from Mexico to the frozen north, each with a great seacoast 
on the Atlantic and each with a great seacoast on the Pacific. 
It was of vital importance to both that the age-long problem 
of transit across the Isthmus should be solved ; and they went 
into partnership to support and to stand behind the making 
of a canal across the Isthmus. They embodied their agree- 
ment in what was called the Clayton-Bulwer Treaty of 1850. 
Well, time passed. Nothing was done, largely, for a long 
time, because of the French experiment of canal building; 
until filially a few years ago that partnership was dissolved, 
and then a new agreement was made under which Great 
Britain retired from her position, and signed over to the 
United States all the rights she had under the partnership 
agreement, with the provision that the canal, when con- 
structed under the patronage of the United States or by the 
United States, whichever it might be, should be opened and 
made neutral upon the same terms that were specified in the 
original agreement, which were that the ships of Great 
Britain and the ships of the United States should have 
exactly the same treatment. 



THE SPIRIT OF SELF-GOVERNMENT 385 

Then Panama made to the United States a grant of the 
use and occupation of a strip of territory across the Isthmus 
to be used for the construction of a canal in accordance with 
the terms and stipulations in this treaty with Great Britain. 
The last session of Congress, however, passed a law which 
gives free transit to American ships engaged in coastwise 
trade when passing between our Atlantic coast and our 
Pacific coast, while tolls are to be imposed upon British ships 
passing between British ports on the Atlantic and British 
ports on the Pacific, and upon all other foreign ships. Now, 
Great Britain claims that that is a violation of the treaty 
which we made with her and in accordance with which, by 
express provisions contained in our grant from Panama, we 
were to build and open the canal. Congress takes a different 
view of the construction of the treaty, and it has passed this 
law which Great Britain says violates it. The question is 
now: What is to be done about it ? 

We have a treaty with Great Britain under which we have 
agreed that all questions arising upon the interpretation of 
treaties shall be submitted to arbitration; and, while it seems 
hardly conceivable, yet there are men who say that we will 
never arbitrate the question of the construction of that 
treaty; but I say to you that if we refuse to arbitrate it, we 
shall be in the position of the merchant who is known to all 
the world to be false to his promises. 

With our nearly four thousand millions of foreign trade 
we shall stand in the world of commerce as a merchant false 
to his word. Among all the people on this earth who hope 
for better days of righteousness and peace ia the future, we 
shall stand, in the light of our multitude of declarations for 
arbitration and peace, as discredited, dishonored hypocrites; 
with the fair name of America blackened, with the self- 
respect of Americans gone, with the influence of America for 
advance along the pathway of progress and civilization. 



386 GOVERNMENT AND CITIZENSHIP 

annulled, dishonored and disgraced. No true American can 
fail to use his voice and his influence upon this question for 
his country's honor. 

We need to think about these deeper things, more impor- 
tant than anything we have been discussing in the cam- 
paign. For, if we are right fundamentally, we will solve aU 
the questions. The spirit of a people is everything, the 
decision of a particular question is nothing, if we are honest 
and honorable. If we are lovers of Hberty and justice, if 
we are willing to do, as a nation, what we feel bound to do as 
individuals in our communities, then all the questions we 
have been discussing will be solved right, and for countless 
generations to come Americans will still be brothers, as they 
were in the days of old, leading the world toward happier 
lives and nobler manhood, toward the realization of the 
dreams of philosophers and the prophets, for a better and 
nobler world. 



THE ARIZONA CONSTITUTION AND 
THE RECALL OF JUDGES 

ADDRESS IN THE SENATE OF THE UNITED STATES 
AUGUST 7, 1911 

In the first decade of the century the movement to secure the recall of public 
oflScials made its appearance in various sections of the country, particularly in the 
West. In some cases the judiciary was included, and in the following states the right 
to recall judicial oflBcers has been adopted up to 1914: Oregon (1908), California 
(1911), Nevada (1912), Arizona (1912), Kansas (1914). 

On June 20, 1910, President Taft approved an act enabling the people of New 
Mexico and Arizona to form a constitution and to be admitted as states of the Union. 
In Arizona a constitution was adopted, containing a provision in its eighth article for 
the recall of public oflBcers, in which judges would be included unless they were 
specifically excluded. A joint resolution of the House and Senate provided the 
following amendment to Article 8: 

Every public oflScer in the state of Arizona, except members of the judiciary, 
holding an elective oflBce, either by election or appointment, is subject to recall 
from such oflBce by the qualified electors of the electoral district from which 
candidates are elected to such oflBce. . . . 

If a majority of the legal votes cast at said election upon said amendment 
shall be in favor thereof, . . . the governor of said territory shall, by procla- 
mation, declare the said amendment a part of the constitution of the proposed 
state of Arizona and thereupon the same shall become and be a part of the said 
constitution; but if the same shall fail of such a majority, then Section I of 
Article 8 of the constitution of Arizona, as adopted on February 9, 1911, shall 
remain a part of the state constitution. 
On August 15, 1911, the President vetoed the joint resolution because of the 
provision permitting the recall of judges. Thereupon, a joint resolution passed the 
Congress and was approved by the President, August 21, 1911 (Stat, at Large, 
Vol. 37, p. 39, Pub. Res. No. 8), removing members of the judiciary from the opera- 
tion of the recall, and making the admission of Arizona depend upon the adoption of 
such an amendment to Article 8 of the state constitution. The amendment was 
adopted by the voters on December 12, 1911, and on February 14, 1912, the Presi- 
dent issued his proclamation admitting Arizona as a state into the Union " on an 
equal footing with the other states." 

Arizona was thus admitted on a footing of equality and on November 25, 1912, 
it exercised this equality as a state by repudiating the amendment to its constitution 
exempting judicial oflBcers from recall. 

The movement to subject judicial oflBcers to the operation of recall has not made 
the progress which its advocates expected, and seems to have spent its force. 

When the resolution, afterwards vetoed by President Taft, to admit Arizona as a 
state of the Union, was before the Senate, Mr. Root spoke as follows: 

387 



388 GO\^RN]MENT AND CITIZENSHIP 

THE act of June 20, 1910, provides for the adoption of a 
constitution by the people of Arizona. It is further 
provided iu the twenty-second section of the act: 

That when said constitution and such provisions thereof as have 
been separately submitted shall have been duly ratified by the people of 
Arizona, as aforesaid, a certified copy of the same shall be submitted to 
the President of the United States and to Congress for approval, together 
with the statement of the votes cast thereon and upon any provisions 
thereof which were separately submitted to and voted upon by the people. 
And if Congress and the President approve said constitution and the said 
separate pro"visions thereof, if any, or if the President approves the same 
and Congress fails to disapprove the same during the next regular session 
thereof, then and in that event the President shall certify said facts to the 
governor of Arizona, who shall, within thirty days after the receipt of said 
notification from the President of the United States, issue his proclamation 
for the election of the state and county officers. 

The act further provides, in section 23: 

When said election of state and county officers, members of the legisla- 
ture, and representatives in Congress, and other officers above provided for 
shall be held and the returns thereof made, canvassed, and certified, as 
hereinbefore provided, the governor of the territory of Arizona shaU 
certify the result of said election as canvassed and certified, as herein pro- 
vided, to the President of the United States, who thereupon shall imme- 
diately issue his proclamation annotmcing the result of said election so 
ascertained, and upon the issuance of said proclamation by the President 
of the United States the proposed state of Arizona shall be deemed 
admitted by Congress into the Union by virtue of this act on an equal 
footing with the other states. 

The joint resolution which is now before the Senate pro- 
vides: 

That the Territories of New Mexico and "Arizona are hereby admitted 
into the Union upon an equal footing with the original States, in accord- 
ance with the terms of the enabling act approved June 20, 1910, upon the 
terms and conditions hereinafter set forth. 

" The terms and conditions hereinafter set forth " are, in 
substance, the requirement that the people of New Mexico 
shall again vote upon that provision of their proposed con- 
stitution which relates to the amendment of the constitution, 



THE RECALL OF JUDGES 389 

and that the people of Arizona shall again vote upon the pro- 
vision of the proposed constitution which relates to the recall 
of the officers, including the recall of judicial officers. The 
provision is that if the people of Arizona, voting upon this 
clause of the constitution which relates to the recall of judges, 
shall vote to amend the constitution so as to omit judicial 
officers from the recall provision, then that amendment shall 
become a part of the constitution; but if the same shall fail of 
such majority, then the section relating to recall shall remain 
a part of said constitution. 

It follows necessarily, sir, from the provisions which I have 
read, that the constitution of Arizona and the provision of 
that constitution relating to the recall of judges is now before 
the Senate for its approval or disapproval. No man can say 
that his vote here fails to commit him to the approval of a 
recall of judges or to a disapproval of that recall. We have 
resolved that the territory of Arizona shall be admitted to 
the Union if the Congress approve the constitution that its 
people have framed, and only if the Congress approve or if 
the President approve and the Congress does not approve. 
The question is squarely and sharply defined. We cannot in 
our vote upon this joint resolution escape an expression of the 
position taken by the Congress of the United States upon 
the proposal that judges shall be liable to recall by a popular 
vote. What we say here is of little consequence; what we do 
here is of vast importance to the people of our country and to 
the development of our system of government. 

The Supreme Court of the United States has decided in the 
Coyle case, the case relating to the right of the people of 
Oklahoma to change the location of their state capital, not- 
withstanding the provision of the enabling act which forbade 
that change, that after a territory has once been admitted as 
a state, the provisions of the enabling act do not control the 
action of the state — the court has held that the admission 



390 ' GOVERNMENT AND CITIZENSHIP 

of the state upon an equality with aU the other states of the 
Union carries with it the power to regulate by constitutional 
provision and by legislation under the state constitution aU 
the matters which are within the scope of authority of any of 
the states in the Union. The moment the enabling act is 
passed, the conditions are complied with, and the proclama- 
tion is issued, the power of the national Congress over the 
great field of local self-control has ended. 

In the consideration and action of the Senate upon this 
joint resolution, we speak the last word that it is competent 
for us to speak regarding the provisions of the state's consti- 
tution. The law of the United States under which this ter- 
ritory is to be admitted has required, and now requires, that 
the admission shall be only upon the presentation to us of a 
constitution that we approve. The question before the 
Senate is: Do we now approve the provisions of the Arizona 
constitution ? If we do, the state will be admitted under 
that constitution in accordance with the terms of the enab- 
ling act; and it will be admitted in accordance with the terms 
of that act because the constitution has the approval of the 
Congress of the United States. Are we ready, Mr. President, 
to approve this provision ? If we are, we shall say so by our 
action upon this joint resolution. If we are not ready to 
approve this provision of this constitution, we are bound by 
the law we ourselves have enacted to make that known 
by our action, and we cannot escape the responsibihty for or 
the consequences of that act. 

What is the provision relating to the recall of judges ? It is 
contained in the eighth article of the constitution which is 
before us for approval or disapproval. The first section of 
that article provides: 

Section 1. Every pubKc officer in the state of Arizona holding an elec- 
tive office, either by election or appointment, is subject to recaU from such 
office by the qualified electors of the electoral district from which candi- 



THE RECALL OF JUDGES 391 

dates are elected to such office. Such electoral district may include the 
whole state. Such number of said electors as shall equal twenty-five per 
cent of the numbers of votes cast at the last preceding general election for 
all of the candidates for the office held by such officer may by p)etition, 
which shall be known as a recall petition, demand his recall. 

Sec. 2. Every recall petition must contain a general statement, in not 
more than two hundred words, of the grounds of such demand, and must be 
filed in the office in which petitions for nominations to the office held by 
the incumbent are required to be filed. 

Then follow provisions relating to signatures and state- 
ments of the residence of the signers. 

Sec. 3. If said officer shall offer his resignation, it shall be accepted, 
and the vacancy shall be filled as may be provided by law. If he shall not 
resign within five days after a recall petition is filed, a special election shall 
be ordered to be held, not less than twenty nor more than thirty days after 
such order, to determine whether such officer shall be recalled. On the 
ballots at said election shall be printed the reasons, as set forth in the peti- 
tion, for demanding his recall, and, in not more than two hundred words, 
the officer's justification of his course in office. He shall continue to per- 
form the duties of his office until the result of said election shall have been 
officially declared. 

Sec. 4. Unless he otherwise request, in writing, his name shall be 
placed as a candidate on the official ballot without nomiaation. Other 
candidates for the office may be nominated to be voted for at said elec- 
tion. The candidate who shall receive the highest number of votes shall 
be declared elected for the remainder of the term. Unless the incumbent 
receive the highest number of votes, he shall be deemed to be removed 
from office upon qualification of his successor. 

To summarize these provisions, sir, they amount to this, 
that at any time after a period of six months one-fourth of the 
persons who voted at the last election in the state or in the 
judicial district may, by signing and filing a petition, deprive 
any judicial oflScer of the right to his office which he has 
secured by his election through the casting of a majority of the 
votes for him in the election. The effect of that is, that one- 
fourth of the electors may decree and effect a reconsideration 
of the election. That is quite independent, sir, of any action 
by a majority of the electors at the election which is there- 



392 GOVERNMENT AND CITIZENSHIP 

after to be held. The mere filing of the petition by approxi- 
mately one-half of the men who voted against a judge sets at 
naught his election, deprives him of his right to the office, 
and compels him to seek a new title to the office through 
another election; and in that other election to which he has 
to submit himself, he has not only to defend his course, to 
justify his conduct upon the bench, but he has to enter into a 
contest as against the popularity, the merits, the claims to 
recognition of one or any number of opjx)sing candidates. 

His right to the office to which he has been elected being 
swept away, he is obhged to go before the people and re-try 
the question of their preference; it may be as between him 
and the man he has defeated, or between him and some other 
possibly more popular candidate, imder the penalty of igno- 
miny and disgrace following upon the removed official, if his 
popularity has waned or a stronger and more popular candi- 
date is nominated against him. That is the tenure of judicial 
office which this constitution proposes to estabHsh in the 
state of Arizona, if that state be now constituted by our 
approval of this provision. 

Let me ask the Senate to consider for a moment what will 
be the necessary working of such a system. We all know 
that from time to time there arise in all courts cases which 
enlist great popular interest. Sometimes they are cases in 
which men are accused of crime and there is a well-founded 
and general public abhorrence of the crime. I submit to the 
experience of the members of the Senate the suggestion that 
the tendency of the public in their abhorrence of a great 
crime is to assume that the man who is declared by the police 
authorities to be responsible for it, is responsible, to overlook 
questions of evidence as to whether he be the true criminal 
and questions as to the degree and character of his guilt, and 
to assume that the man who is charged is the man who is 
guilty. The more atrocious the crime, the more general and 



THE RECALL OF JUDGES 393 

customary is this tendency to condemn a person who is 
charged with its commission. 

Sometimes questions which attract pubHc interest are 
questions having a poHtical bearing. In our comphcated 
system of government it frequently happens that questions 
are submitted to the courts upon the determination of which 
must depend the success of one party or another in estabhsh- 
ing its views or in securing the control of the machinery of 
government. It is but a few days since the courts of my own 
state passed upon a question as to the validity of the appor- 
tionment of the state, and upon their decision rested, per- 
haps, the question whether one or the other of the great 
political parties should have control of the government of the 
state. 

Such cases are frequently arising in all of our states, and it 
frequently happens that there is great public excitement, 
intense interest, strong desire to have the decision in accord- 
ance with the views of political partisans, who naturally 
consider the view of their own party to be the correct view. 

Sometimes such questions arise from the conflict of reli- 
gious opinions. I have heard it said in this hall today that 
courts can never pass upon religious questions. Ah, Mr. 
President, would any Senator say that no court can enforce 
the provisions of our Constitution in favor of religious lib- 
erty ? New sects are continually arising in our country, and 
the votaries of the religious views of those sects are at the 
beginning small and insignificant minorities. Questions 
regarding their rights as religious bodies, questions regarding 
their rights to freedom of worship and of expression, are pro- 
tected by the provisions of our constitutions, and against the 
wish, against the prejudice, against the passion of the vast 
majority of the people, the courts, and the courts alone, can 
maintain the rights of the few to pursue the dictates of their 
own conscience rather than the wiU of the majority. 



394 GOVERNMENT AND CITIZENSHIP 

Sometimes questions arise upon those limitations which our 
constitutions impose upon the action of legislatures and exec- 
utive officers and people alike by those great rules that pro- 
tect liberty and property against the power of government 
wherever it be vested. 

Now, sirs, picture to yourselves a judge before whom one of 
these cases is brought. A few people, a single man, is upon 
one side. The powers of a government are upon the other 
side. For the few and the weak there stand only the rules of 
law. Upon the other side stands the public desire to have a 
decision in accordance with the public interest or the public 
feeling. Picture to yourselves the judge who is called upon 
to decide one of those cases, and consider what his frame of 
mind and condition of feeling must be when he knows that if 
he decides against public feeling, immediately a recall petition 
wiU be signed and filed, and the great body of the people 
against whose wish he has ruled will be caUed upon, will be 
required, to vote whether they prefer him to some man who 
has never offended public opinion. 

Upon aU these cases, sir, so far as they depend upon 
e\adence — and a vast majority of them do depend upon evi- 
dence — which is produced in the trial and which enters into 
the record of the case, the public does not see the record. It 
receives its information from the press. I beg the Senate to 
recall the reports of trials and arguments in our courts which 
they have been accustomed to see in the public press. The 
conditions of newspaper enterprise do not permit the publica- 
tion of the fuU record of any trial. The gentlemen of the 
press, eager to secure items of news that wiU be interesting to 
the readers of their papers, catch upon the spectacular and 
interesting and startling incidents of the trial and reproduce 
them in their columns. 

The judge is to pass upon the evidence that appears in the 
record, but he is to be judged upon the newspaper reports of 



THE RECALL OF JUDGES 395 

the triaL And to whom, sir, will the judge try that case ? 
To whom will counsel argue that case ? What will become of 
that spirit which pervades every true court of justice, in 
which the facts as ascertained and the law interpreted and 
these alone form the basis of judgment ? Is it in human 
nature that a judge, sitting under such circumstances as are 
exhibited by this provision which I have read, shall do other 
than try his case rather to the reporters than to his con- 
science, to his knowledge of the law, and to his understanding 
of the facts ? For at every step the judge is upon trial. His 
defense will not come when he has the opportunity to put 
two hundred words of justification upon the ballot. His 
defense will begin with the first step in the trial of the cause. 
Human nature cannot work otherwise. In all these great 
cases of public interest, the judge will be on trial on the 
newspaper record, and in that trial he will take a far deeper 
interest than in the trial of the defendant or in the rights of 
the parties upon the record of the court. 

Let me illustrate the way in which this provision is bound 
to work, by reading from a newspaper called The People's 
Paper, published in Los Angeles, California, Saturday, April 
15, 1911. In large black letters: 

AROUSED PEOPLE TO RECALL JUDGE 

In large, but not so large black letters below: 

LOS ANGELES WILL BE FIRST TO USE NEW LAW AND OUST UNION 
PERSECUTOR FROM THE BENCH 

In large black letters, but still not so large: 

To recall Judge Joseph Chambers for persecuting union strikers is now 
the declared purpose of Los Angeles Socialists and union men, who assert 
that immediately upon the passage of the state recall amendment Cham- 
bers will be the first judge in California to receive the attention of an 
aroused people, determined to oust him from the bench. 

The recall petition will set forth that this judge raised the bail of three 
union men, John Crelly, R. L. Murray, and Isaac Libby, from the usual 
$50 to the outrageous sum of $300 per man; that the maximum fine for 



396 GO^^ERNMENT AND CITIZENSHIP 

their alleged offense of picketing is but $50, and therefore in making their 
bonds six times as large as the highest i>ossible fine. Chambers must have 
determined to punish the strikers before a jury could have an opportunity 
to declare them innocent. 

Why a judge on the bench, the petition will recite, should have thus 
made himself an open partisan of the Merchants and Manufactm-ers 
Association, can only be explained by the fact that out of the 310 metal 
trades mechanics, brewery workers, and other union strikers arrested and 
taken to the police coiirt only four convictions were obtained. 

Plainly, the pubKc and jurymen believed these men innocent. 

Plainly, the judge concluded that if strikers were to be punished, it 
must be done before trial. 

The petition wiU then show that the average workingman has little 
money, as Chambers well knows, and therefore he practically attempted to 
harass them with imprisonment an unknown number of days in a vile jail 
awaiting trial by demanding of each striker $300 cash bail. 

Mr. President, I do not know whether this reeaU petition 
which is outlined there was ever filed. I do not know what 
action was taken regarding it. I do not know whether the 
judge was right or wrong in fixing $300 as the amount of bail. 
But I do not doubt that this paper illustrates, and well illus- 
trates, what win be the inevitable course that will ensue 
upon the establishment of such a tenure of official office as is 
provided for by this constitutional provision. 

Mr. Works. Mr. President, I do not desire to antagonize 
anything that has been said by the Senator from New York, 
for I fully agree with the position he takes upon this question, 
but I do desire to say that there is as yet no law in the state 
of California for the recall of judges. 

Mr. Root. I am very glad to hear it. 

Mr. Works. I desire to state further that in my judgment 
if the recall did exist in the county of Los Angeles, my home, 
there would be no danger of the judge referred to in this arti- 
cle being recalled on any such ground as is set forth in the 
newspaper. 

IVIr. Root. I am very glad to hear that also. As I have 
just said, I do not know whether any action was taken. It 



THE RECALL OF JUDGES 397 

is evident no action was taken, because the law was not 
passed; but I have read this paper to illustrate the way in 
which the recall provision will be regarded by the people who 
have a deep interest in judicial action; and it is under the 
pressure of such attempts, if such a provision is adopted, that 
every judge must administer justice in the causes which 
excite public interest and public passion. And those are the 
causes which test the strength and effectiveness of a system 
of administering justice. 

In the year of the Declaration of Independence the tem- 
porary legislative body of Massachusetts undertook to frame 
a constitution for the state, and sent to the different towns of 
the state a request for their consent to the establishment of 
such a constitution. On October 1, 1776, the people of Con- 
cord, in their town meeting, adopted a resolution refusing to 
accept a constitution so framed. Among other reasons they 
said that they refused " because we conceive that a constitu- 
tion in its proper sense intends a system of principles estab- 
lished to secure the subject in the possession and enjoyment 
of the rights and privileges against any encroachment of the 
governing party." That reason applies, sir, whether the gov- 
erning party be a king or a president or a legislature or the 
people at the polls. The constitution in its just sense intends 
to secure the subject in the possession and enjoyment of his 
rights and privileges against any encroachments of the 
governing party. 

The men who sent back that answer, that they would not 
accept a constitution framed by the legislature which ought 
to be restrained by the constitution, were the very men who 
stood at Concord Bridge and had the courage to fire the first 
shots against the overwhelming power of England. I trust, 
sir, I believe, that the spirit of Concord, of 1776, has not died 
out among the American people, and that they are not yet 
ready to put the judge, who alone can maintain the rights of 



398 GOVERNMENT AND CITIZENSHIP 

the citizen against the governing party, at the immediate 
mercy of the governing party. We are not yet ready to say 
to the judge whom we put upon the bench to maintain the 
great principles of justice, " You shall maintain them under 
the penalty of being deprived of your oflBce and being dis- 
graced for life if you oppose the will of the governing body." 

Mr. President, I should not oppose the admission of Ari- 
zona with provisions in its proposed constitution which were 
of minor consequence, even though I did not agree with 
them. There are many provisions in this constitution which 
I think inexpedient and unwise. There are a number of pro- 
visions which I deeply regret to see incorporated in the con- 
stitution of any American state. But for all that I would not 
oppose the admission of Arizona as a state upon a consti- 
tution adopted by a vote of her people because it contained 
those provisions, or because it contained any provision which 
did not seem to me to be fundamental in its character and to 
be in a considerable measure a negation of the true principles 
of our Government. 

I conceive that this provision for the recall of judges is of 
that character. I think it goes to the very basis of our free 
Government, and I will proceed to state why I think it differs 
from the other provisions which I dislike. I have no quarrel 
with the gentlemen who extol the wisdom of the people. I 
believe that in the long run, after mature consideration and 
full discussion, and when conclusions are reached under such 
circumstances as to exclude the interests or the prejudice or 
the passions of the moment, the decisions of the American 
people are sound and wise. But, sir, they are sound and wise 
because the wisdom of our fathers devised a system of gov- 
ernment which does prevent our people from reaching their 
conclusions except upon mature consideration, after full 
discussion, and when the dictates of momentary passion or 
seK-interest are excluded. 



THE RECALL OF JUDGES 399 

The framers of our Government were largely men who had 
been bred and had inherited deep religious convictions, and 
among those convictions was the realization of the fact that 
among all the virtues that it is incumbent upon men to cul- 
tivate and to seek, the virtue of self-restraint stands one of 
the first. That view of human strength and weakness, sir, 
lies at the bottom of the religion which we all profess. What- 
ever be the creed, the denomination, the name underlying 
the religion of all of us, as it underlay the religions of the 
framers of our Government, there is the knowledge that we are 
fallible, prone to evil, weak in the face of temptation, liable 
to go astray, and that we sorely need to restrain ourselves 
from the following of our own impulses by the rule of prin- 
ciples — principles of religion, principles of morality, prin- 
ciples of justice. We know that but for some ruling principle 
we are sure to err, and that our holding to the straight path 
depends upon our fidelity not to the impulse or the wish of 
the moment, but our fidelity to the principles that control 
our lives and conduct. 

Many of the framers of the Republic were men who 
inherited the traditions of a theocratic government, in which 
men were controlled as against their own impulses and pas- 
sions by the dictates that were handed down in the revelation 
from the Divine Ruler. In a belief which we cannot gainsay 
today, they undertook to establish for this Government a 
code of fundamental principles of justice, of equality, prin- 
ciples formulated in specific rules of conduct to make prac- 
tical their application. Those principles we describe as the 
constitutional limitations of the national and the state consti- 
tutions : 

No man shall be deprived of his property except by due process of law. 
Private property shall not be taken for public use except upon due 
compensation. 

No man shall be compelled to be a witness against himself. 
No man shall be twice put in jeopardy for the same offense. 



400 GOVERNIVIENT AND CITIZENSHIP 

And aU the others, that great array of the fundamental and 
essential principles by which the American Repubhc has 
imposed restraints upon itself against its own interest of the 
moment, its own wishes of the moment, its own prejudice and 
passion of the moment; that great array of the fundamental 
rules of justice, of Hberty, of human rights, which I say the 
American Republic has imposed upon itself, is the great 
secret of the success of the American experiment in govern- 
ment, the maintenance of justice and order, individual liberty 
and individual opportunity in this vast continent, among 
these 90,000,000 people. And for the maintenance of those 
rules of justice our fathers provided that the government 
which may seek, under the interest or the passion of the 
moment, to override them, shall be withheld by the judgment 
of a body of pubhc officers separated from the interests and 
passions of the hour, with no pride of opinion because of 
having made a law, with no lust for power because of a desire 
to execute a law, with a strong hand according to individual 
opinion as to what may be best; but impartial, sworn only 
to the administration of justice, without interest, without 
fear, and without favor. They intrusted the maintenance of 
these rules to a body of judges, who were to speak the voice 
of justice without fear of punishment or hope of reward. 

It is the establishment of this system of rules, fundamental 
rules, intrusted for their declaration and maintenance to a body 
of impartial judges, that is the great contribution of America 
to the pohtical science of the world, the great contribution of 
America to the art of self-government among men. 

\Miy, Mr. President, was it necessary to establish these 
rules of right ? Why should there be a provision in our con- 
stitutions which prevents the taking of private property for 
pubhc use without compensation ? Why should there be a 
provision that no man shall be twice put in jeopardy for the 
same offense ? Why should there be a provision that no 



THE RECALL OF JUDGES 401 

cruel or unusual punishment shall be inflicted, unless it be 
that the existence of such rules was deemed to be necessary 
and is deemed to be necessary to control the governmental 
power of the moment ? 

The essential difference, sir, between the establishment of 
one of these great rules of right conduct in a constitution, and 
the enactment of a law either by a legislature or by a people, 
is that the fundamental rule is established upon considera- 
tions of abstract justice. The rule is established when no one 
has any concrete interest to be affected, when no one is 
desirous of doing the wrong thing that the rule prohibits or of 
undoing the right thing that the rule maintains. It is then 
that the voice of an intelligent people is the voice of God, 
when upon considerations of justice, when considering what is 
right and fair, and makes for justice and liberty, a people 
establish for their own control and restraint a rule of right; 
and the abstract rule is necessary because when the concrete 
interest comes into play, because when the passion of the 
moment comes into play, because when religious feeling 
is rife, when political feeling is excited, when the desire for 
power here or the desire to push forward a propaganda of 
views there comes into play, then the inherent weakness 
of human nature makes it certain that the great and funda- 
mental principles of right will be disregarded. 

Sir, we see every day legislatures of our states passing laws 
which are in violation of these fundamental rules. We see 
every day public oflicers exercising an arrogant power in 
violation of the fundamental rules, except as they are 
restrained by the cold and impartial voice of those tribunals 
that our people have estabUshed to assert the control of the 
principles of justice over the interests and the passions of 
the moment. 

Mr. President, this provision for the recall of judges strikes 
at the very heart of that fundamental and essential character- 



402 GOVERNMENT AND CITIZENSHIP 

istic of our system of government. It nullifies it; it sets it at 
nauglat; it casts to the winds that protection of justice that 
our fathers established and that has made us with all our 
power a just and orderly people. For, sir, when we say to the 
judge upon the bench, who is bound to assert the rules of 
justice established in a constitution long years before for the 
restraint of the people in their passion or their prejudice, you 
shall decide for the rules of justice at your peril ; when we say 
to the judge, if you maintain the abstract rule of justice 
against the wish of the people at the moment, you shall be 
turned out of office in ignominy, we nullify the rule of justice 
and we establish the rule of the passion, prejudice, and 
interest of the moment. 

So, sir, I say that this provision of the Arizona constitution 
strikes at the very heart of our system of government. It 
goes deeper than that. This provision, sir, is not progress, it 
is not reform; it is degeneracy. It is a movement backward 
to those days of misrule and unbridled power out of which 
the world has been slowly progressing under the leadership 
of those great men who established the Constitution of the 
United States. It is a move backward to those days when 
human passion and the rule of men obtained rather than the 
law and the rule of principles; for it ignores, it sets at naught 
the great principle of government and of civilized society, the 
principle that justice is above majorities. 

I care not how small may be the numbers of a political faith 
or a religious sect, I care not how weak and humble may be a 
single man accused of however atrocious a crime, time was 
when the feelings and the passions and the wish of a majority 
determined his rights and oftentimes his right to life; but 
now, in this twentieth century, with all the light of the civili- 
zation of our times, after a century" and a quarter passed by 
this great and free people following the footsteps of Washing- 
ton, Hamilton, Jefferson, and Madison, now with all the 



THE RECALL OF JUDGES 403 

peoples of the world following their footsteps in the estab- 
lishment of constitutional governments, the hand of a single 
man appealing to that justice which exists independently of 
all majorities has a power that we cannot ignore or deny but 
at the sacrifice of the best and the noblest elements of 
government. 

There is such a thing as justice, and though the greatest 
and most arrogant majority unite to override it, God stands 
behind it, the eternal laws that rule the world maintain it; 
and if we attempt to make the administration and award of 
justice dependent upon the will of a majority, we shall fail, 
and we shall fail at the cost of humiliation and ignominy to 
ourselves. 

I do not envy the men who prefer the uncontrolled rule of a 
majority free from the restraints which we have imposed upon 
ourselves, to the system of orderly government that we have 
now established. I do not envy the men who would rather 
have the French constituent convention, controlled by Marat 
and Danton and Robespierre, than to have a Supreme Court 
presided over by Marshall; who would rather have conclu- 
sions upon a question of justice reached by a popular election 
on the basis of newspaper reports than to have the impartial 
judgment of a great court. I do not envy the men who have 
no sympathy with Malesherbes and De Seze pleading for 
the lawful rights of Louis XVI against the dictates of the 
majority of the French capital in 1793. 

I do not envy the men who see nothing to admire in John 
Adams defending the British soldiers against the protests of 
his neighbors and friends and countrymen, after the Boston 
Massacre. Rather, sir, would I feel that my country loves 
justice and possesses that divine power of self-restraint with- 
out which the man remains the child, the citizen remains the 
savage, and the community becomes the commune; that my 
country has carried into its system of law, and, whatever be 



404 GOVERNMENT AND CITIZENSHIP 

its wish for the moment, whatever its prejudice, whatever its 
passion for the moment, will forever maintain as of greater 
importance than any single issue or any single man or any 
single interest; that reverence for the eternal principles of 
justice which we have embedded in our fundamental law as 
our nearest approach to the application of the divine 
command to human affairs. 



THE RECALL OF JUDGES 

REMARKS IN THE REPUBLICAN STATE CONVENTION AT 
ROCHESTER, APRIL 10. 1912 

At the New York State Convention, held at Rochester, N. Y., Aprfl 9-10, 1912, 
the following, among other resolutions, was adopted : 

We oppose the recall of judges or any system which will introduce cowardice 
as an element in the administration of justice. The authority of the judiciary 
should not be impaired. Respect for the courts once broken down, the con- 
stitutional protection of the liberties of the individual would be destroyed. 
Upon this resolution, dealing with the recall of judges and of judicial decisions, 
Mr. Root spoke as follows: 

I HAVE risen to second the resolutions reported by your 
committee, but I shall confine what I have to say to a 
single subject treated in this series of resolutions, the subject 
which covers the attempt to interfere with the independence 
and destroy the authority of the judicial department of our 
Government. 

I confine myself to this because I regard it as of over- 
shadowing and overwhelming importance. We may change 
our tariff laws, and if we are not satisfied with them we may 
change them again. We may change our method of nomi- 
nating officers, and if jthe system does not work right we can 
change it again. We can change our method of electing 
officers and change it again. All the ordinary laws which 
affect the conduct of business and the relations of men to 
each other and the powers of government in general may be 
changed and rechanged to suit the developing feelings and 
interests and opinions of the people; but the duty of sub- 
mitting our will, whether it be the will of the individual or 
the will of the greatest majority that ever gathered at the 
polls, to the eternal principles of justice, that can never 
be changed without the degradation of the people who 
reject it. 

405 



406 GO\^RN]VIENT AND CITIZENSHIP 

The founders of our Republic were wise men in more ways 
than one. They understood history and the philosophy of 
government, and they understood human nature. They 
were students and they were men of affairs, and they founded 
our Government upon two basic propositions, upon two 
underlying truths. One of them was the truth that you and 
I learned in our childhood, for we came of a God-fearing 
people as they did. We learned and we should not forget 
that our natures are weak, prone to error, subject to fall 
into temptation and to be led astray by impulse. All the 
history of religion, of morality, of government, all the his- 
tory of man, teems with imiversal and overwhelming proof 
of this great truth, upon a recognition of which our civil 
society rests. They knew, too, that men are no more perfect 
in the mass than they are as individuals. They knew that 
indeed when men come together or act in great bodies free 
from the sense of personal responsibiHtj% they will often do 
things that they would shrink from doing as individuals. 
The party whose vitaHty has brought us here was founded 
upon resistance to the spread of that doctrine under which 
vast majorities, overwhelming majorities in the states cover- 
ing nearly one-half of om* land, majorities composed of men 
as true, as honorable, as noble, as Hve in America, or any- 
where on earth, united in holding millions of black men 
slaves. The life of the Republican party was a protest 
against that rule of the majorities in the South. We live 
as an organized protest against the majorities that defy the 
rule of justice. One other great fundamental principle they 
based themselves upon, and that was that there is only one 
way in which man can control his own tendencies to error, 
and that is by the recognition, the adoption and the enforce- 
ment upon himself of declared principles of right conduct. 
So throughout the history of the world the assertion of 



THE RECALL OF JUDGES 407 

principles to govern men and to restrain their impulses has 
been the method of advance in morality, in social conditions, 
in civilization. Principles inculcated by religion, principles 
of social honor, the violation of which is visited by the com- 
munity with penalties more terrible than the prison and 
execution, declared principles of action, sometimes enforced 
by a superior from above, sometimes enforced by intelligent 
self-control, are the only antidote, the only remedy, the only 
preventive for that yielding to impulse which today makes 
the people of Mexico one tumultuous mob, devastating that 
fair land which had taken so many forward steps under the 
rule of law and order along the pathway of civilization. 

Upon these two foundations our Government was based, 
and for that imposition of rules of conduct that formerly 
came from a monarch, our fathers substituted the imposition 
of rules of right conduct by the people, upon themselves. 
They put the declarations of principle into our organic laws 
in colonies, in states, and in the nation, and we call them 
constitutional limitations. There is prejudice in some minds 
against the discussion of constitutional limitations, because 
lawyers become dry and tedious and narrow and technical 
in discussing them; but they are the declaration of those 
principles of eternal justice upon which civilization rests, set 
up by the people for their own guidance. They are a 
covenant between all the people, and every man, every 
woman and every child in the state. They are a covenant 
between arbitrary and overwhelming power and the weak- 
ness of the individual. These constitutional limitations are 
necessarily established in the abstract. They are impersonal. 
They are the rules of action which are established when men 
have no particular interest at stake. They are the rules of 
action which are established when there is no strong desire 
to do injustice. Universal and impersonal, they constitute 



408 GOVERNMENT AND CITIZENSHIP 

the nearest approach that humanity has ever made to puttmg 
into human law the divine rules, conformity to which is the 
requisite of a Christian civilization. 

These limitations cannot be enforced except by having 
some one who shall say whether a particular action that they 
design to restrain does violate them or not; and in order that 
that may be determined, in order that the line may be drawn, 
our fathers established the judicial system in which there 
should be placed judges impartial, upright, free from any 
complicity in the interests that came before them, who 
should do justice in accordance with these declared prin- 
ciples, to rich and poor alike, without fear or favor or hope 
of reward. Upon the independence and the authority of 
those judges depends the perpetuity of this system of restraint 
upon ourselves, which is essential to the prevalence of justice 
and the continuance of our free institutions. Now if you 
undertake to say to a judge that if he decides against the 
popular will that finds itself restrained by the declaration of 
one of these principles of conduct under the Constitution, he 
shall be recalled, you make a coward of him. It is not in 
human nature that judges shall hold the scales evenly when 
they know that by making an unpopular decision they them- 
selves will be the sacrifices. It will introduce the rule of 
cowardice in place of the rule of courage. It will introduce 
the rule of time-serving in place of the rule of fearless justice. 
It will introduce the rule of the force of the great body of 
the people instead of the rule which protects the weak 
individual against all the people. And so, with the proposal 
that the people shall pass by vote upon the decisions of the 
judges as to constitutional questions; that means that 
wherever a constitutional limitation has been estabhshed to 
prevent the people from doing injustice, when it comes to the 
point of action, they themselves shall determine whether 
they will be restrained by it or not in the particular case 



THE RECALL OF JUDGES 409 

where the injustice may be done. These rules must be kept 
impersonal, abstract, universal, in order that they may 
restrain and guide action in each particular case. It is so 
that just men rule their own conduct. They do not make up 
their principles as they go along, accordingly as they wish 
to do this or that or the other thing. They determine their 
principles and then they direct their conduct and restrain 
their wishes by making them conform to the principles they 
have adopted beforehand. 

These fundamental bases of our Government do together 
assert and set up as the great pivotal principle of national 
conduct, the proposition that there is such a thing as justice 
that is above majorities and is independent of popular will. 
All the votes in America cannot make injustice, justice. It 
is impossible that any two beings should be created anywhere 
in this universe and come into life without being subject to 
the eternal law that requires just conduct by them toward 
each other. Abraham Lincoln in the first Inaugural de- 
scribed the true character of our Government. He said: 

A majority held in restraint by constitutional checks and limitations 
and always changing easily with deliberate changes of popular opinion 
and sentiment, is the only true sovereign of a free people. Whoever 
rejects it does of necessity fly to anarchy or despotism. 

Aye, whoever rejects the order of a majority acting within 
the restraints of these eternal principles declared in our 
Constitution, flies of necessity to anarchy or despotism, and 
whoever breaks down the restraints of these eternal principles 
upon the majority flies of necessity to anarchy or despotism. 
All these other matters are of little consequence, for this is 
the fundamental matter. This is decisive. It is along this 
line that the progress and development of our country has 
won its way. You may change it; you may depart from 
this old standard of justice enforced by an independent 
judiciary, as God's people many a time have turned their 



410 GOVERNIMENT AND CITIZENSHIP 

faces away from Him. You wiU not see the difference at 
once, not today, not tomorrow, or for many morrows; but 
tte paths will surely and steadily be diverging; one pathway 
is the pathway of the decline and fall of nations and it leads 
of necessity to anarchy or despotism. The other pathway is 
the glorious one upon which our country% with its Consti- 
tution declaring the everlasting principles of divine law, has 
proceeded in its majestic course of advancing civilization, 
leading the world in winning for all mankind, rich and poor, 
high and low, the inestimable privilege of hberty, with order, 
preserved by justice. 



THE ADMINISTRATION OF JUSTICE 



SOME DUTIES OF AMERICAN LAWYERS 
TO AMERICAN LAW 

COMMENCEMENT ADDRESS BEFORE THE YALE LAW SCHOOL 
NEW HAVEN, JUNE 27, 1904 

IN this country of common opportmiity for exceptional suc- 
cess no career opens so many and such varied pathways to 
great usefulness and to fame and fortune as does that of the 
lawyer. The conditions precedent to a lawyer's success are 
severe. He must acquire sound learning; he must be trained 
to clear thinking and to simple and direct expression; he must 
be both intellectually and morally honest; and he must have 
the quality of loyalty to every cause in which he enlists. 
He should have the tact which comes from real sympathy 
with his fellow-men, and he will be far better for the saving 
grace of a sense of humor, which brings with it sense of pro- 
portion and of good judgment. 

The lawyer who exercises these qualities is certain of pro- 
fessional emoluments greater than those received by the 
members of any other profession, old or new. But he is cer- 
tain of far more than this. As he goes on in life a multitude 
of personal relations grow up between him and his chents. 
Some of these clients are strong and able, and with them the 
relation is of mutual respect and helpfulness. Others are 
weak and dependent, and to them he furnishes not merely 
learning, but support and strength of character and moral 
fiber. The feeling of all is characterized by confidence and 
trust. The growth of his own character responds to the 
requirements of this esteem. In time other people come 
to feel and to adopt to a great degree the opinion and atti- 
tude of the clients who know him best. And so he rounds 

413 



414 ADMINISTRATION OF JUSTICE 

out his career in possession of that priceless solace of age — 
the respect and affection of the community which makes up 
his world. 

The faculties of such a lawyer are exercised in a wide 
variety of affairs. Today, preparation for the trial of a cause 
requires him to become familiar with the history and methods 
of a great manufactory, the sources and cost of its raw mate- 
rial, the markets for its finished product, the elements of its 
success or failure, the difficulties and hopes and fears and ways 
of thinking of its managers. Next week he may go through 
the same process with a railroad company, and the next with 
a banker, and the next with a merchant, or a ship owner, or 
a contractor, or a charitable institution, or a church. Men 
looking at life from aU points of view and with all sorts of 
prejudices come to him in turn, and he has to put himself in 
their places and get their angles of vision in order to apply 
his own sense of proportion to their affairs and advise them 
justly. The lawj'^er thus naturally tends to avoid the running 
into a rut of narrow experience and activity, which makes 
so many men who are able in their own particular business 
worthless for anything else. 

It frequently happens that the capacity cultivated by this 
variety of experience and the opportunity for its demonstra- 
tion bring to the lawyer some prize of business life and take 
him out of the general practice of his profession altogether. 
Among the men whom the seniors of oiu* bar remember as 
trying small causes many years ago are to be counted now 
heads of great banking houses of world-wide influence, of 
great railways, and of great mining and manufacturing and 
constructing enterprises. 

More important is the adaptation for pubhc office which 
results from the variety of a lawyer's experience and training. 
The study and exposition of existing laws, of course, tends to 
qualify men to be makers of law, and to a less degree to 



DUTIES OF AMERICAN LAWYERS 415 

administer the law. The lawyer's habit of speaking and of 
thinking on his legs is useful in a legislative body. The 
capacity to get the sense of a document in the shortest pos- 
sible time, and the faculty of rapid decision — both of which 
are so necessary in court — are useful in an administrative 
office. But I think the chief reason why so many lawyers 
tend naturally to public office is that every public office is 
quite different from any private business, and it is much 
easier and more natural for the lawyer with his varied experi- 
ence and his habit of transplanting himseK frequently from 
one set of interests and ideas to another, to meet the different 
requirements of public office, than it is for any other member 
of the community. For this reason, or for all these reasons 
put together, the people in our country turn more frequently 
to lawyers for the performance of public duties than to any 
one else; and our government is largely carried on by them. 
The profession of law, therefore, affords the most promising 
route to high office not merely upon the bench but in the 
legislative and executive branches of government. 

In all these relations the lawyer can, if he will, exercise a 
powerful influence over the thought and sentiment of his 
community. His quasi-public employment makes him a 
conspicuous figure. Every interesting case in which he is 
engaged advertises his name, and it becomes known to the 
public. He can greatly aid all good causes, and do much to 
restrain or move public feeling and public judgment. 

All these opportunities carry correlative obligations. The 
confidence of chents and of the community, the familiarity 
with affairs, the wide acquaintance with men, the knowledge 
of the law and its working and of the principles upon which it 
is based, the intimate connection with business enterprises, 
the large share in the government of the country, impose 
upon the member of the profession in America special respon- 
sibilities for the preservation and systematic development of 



416 ADMINISTRATION OF JUSTICE 

the social and political system in which the legal profession 
plays so great a part. 

He is a poor-spirited fellow who conceives that he has no 
duty but to his clients and sets before himself no object but 
personal success. To be a lawyer working for fees is not to be 
any the less a citizen whose unbought service is due to his 
community and his country with his best and constant 
effort. And the lawyer's profession demands of him some- 
thing more than the ordinary public service of citizenship. 
He has a duty to the law. In the cause of peace and order 
and human rights against aU injustice and wrong, he is the 
advocate of all men, present and to come. If he fail in loyalty 
to this cause; if he have not the earnestness and sincerity 
which come from a strong desire to maintain the reign of law; 
his voice will ring false in the courts and will faU to carry 
conviction to judicial minds. 

The institutions upon which the lawyer's opportunities are 
based have not come of themselves; they are the product of 
the convictions, the efforts and the devotion of om* predeces- 
sors. They are not indestructible; they are hable to pass 
away as many times before human institutions have passed 
away, to be known only in history. They will continue only 
so long as they have the faith and loyalty of the people who 
hve under them and believe in them and are wiUing to con- 
form to them because they believe in them. The real force of 
law as a continuing rule of action is derived from the assent of 
the people for whom the rule of action is prescribed. Without 
real assent on their part to the justice and expediency of the 
law it soon becomes powerless and ineffective. It is a mat- 
ter of common observation that statutes which run counter 
to the deliberate sense of the community for which they are 
provided fail of execution and fall into disuse, as for exam- 
ple, the laws relating to the sale of intoxicants in some of 
our large cities; that when in the course of time the moral 



DUTIES OF AMERICAN LAWYERS 417 

standards of a community change, laws which have once 
satisfied the moral sense of the people but have come to be 
no longer in conformity to the changed standard, become 
obsolete and impossible of execution, — as for example, the 
so-called "blue laws" of Connecticut; that when laws do not 
conform to the judgment of a community as to what is a just 
and reasonable regulation of the conduct of its members 
toward each other, there is a constant tendency toward the 
establishment and enforcement of new and different regula- 
tions, even without formal legal sanction, to take the place of 
the formal but rejected and ineffective rules, — as in the case 
of the treatment of the crime of horse-stealing upon our 
western frontiers, and in the case of the marriage laws of 
Cuba and Porto Rico, which resulted in a large part of the 
population living in marital relations not sanctioned by the 
law prescribed by the sovereign, but sanctioned by customary 
law of the people under which without reproach the home was 
maintained and the family was reared under marital fidelity 
and parental responsibility. 

No doubt is thrown upon this principle by the fact that 
very bad and oppressive laws have been for long periods en- 
forced by superior power among peoples who had not yet con- 
ceived the idea that they themselves were the true source of 
authority. The assent of such people to the right of superior 
authority to impose laws upon them is in effect an assent to 
the law which is imposed by that authority, however much 
it may differ from their judgment and wish. 

It is of little consequence that any particular law fails of 
effect for want of pubUc assent, except that each instance 
of disregard of law tends to weaken respect for law in general. 
But the same inexorable rule applies to the fundamental prin- 
ciples which underHe systems of law. If they come to be 
without the genuine assent of the people to their justice and 
expediency, they also will fail of effect; a system founded 



418 ADMINISTRATION OF JUSTICE 

upon them will fail, and a general structural and institutional 
change will take place. If our people were to revert to the 
views of individual liberty which prevailed iu Spain under 
the rule of Philip II on the one hand, or were to give their 
adherence to the opinions concemiug the right of property- 
preached by Karl Marx and Lassalle on the other hand, the 
constitutions which express the principles underlying our 
institutions and our laws would become dry husks with no 
more life in them than the laws of the Medes and the Persians. 
We believe that those principles are founded in eternal jus- 
tice, and that in the development of civilization the whole 
tendency is toward them and not away from them; but com- 
munities, like individual men, often wander. The path of 
departure from true principles always proceeds by gradual 
and unobtrusive divergence. There are comparatively few 
who appreciate the value and importance of a rule, as dis- 
tinguished from justice in a particular case. The great rules 
of right established in our constitutions were of impersonal 
and impartial origin. As Ulysses bound himself to the mast 
while still without the influence of the sirens' song, our fathers 
bound themselves and their successors by constitutional 
hmitations against future temptation to violate principles of 
justice imder the pressure of special occasion. Like Ulysses, 
when the temptation comes we struggle against the restrain- 
ing bands. Now some sudden gust of popular feeling, now 
widespread and insidious appeals by some great private 
interest, now the requirements of immediate poHtical party 
exigency, press against the limitations. Then some men say, 
and more men think: Why should the criminal go unpun- 
ished because of the technical form of old rules ? Why 
should profitable and fair action be hindered by the fine spun 
theories of old lawyers ? No legislative body meets in this 
country which does not give at least its theoretical assent 
to the principles of the Constitution; but it is probably safe to 



DUTIES OF AMERICAN LAWYERS 419 

say that not a legislature meets which does not spend much 
of its time in trying to evade those principles. Always that 
great part of the people who are dissatisfied with their lot, 
those who assume that all the ills of life can be remedied by 
law, and those who resent the differences of condition which 
result from differences of individual capacity, continually 
question the justice of the system under which others seem to 
be richer, happier, more privileged than they. 

No mere vis inertioe of the statute book will resist this pres- 
sure. No indifferent and unbelieving people will maintain 
these great rules of right in living force. They can be main- 
tained only by a people who believe in them, and who hold 
them to be the bulwarks of their possessions, of their Hberty, 
and of their individual opportunity, who esteem them above 
all private interest, and are earnestly determined to enforce 
them. 

To preserve and foster such a living faith of the people in 
the supreme value of the great impersonal rules of right which 
underlie our system of law, is the highest and ever-present 
duty of the American lawyer. 

The features of our system of law which it is specially 
important to preserve inviolate are not to be found in the 
general body of municipal law which regulates the relation of 
members of the community to each other. The oft-quoted 
declaration of Lord Coke that " the common law is the per- 
fection of reason " leaves the student of the law as it was in 
that famous judge's time still at liberty to question the per- 
fection of human reason. It is so in our own time. We have 
no just ground for arrogating to ourselves any special 
superiority over the other civilized nations of the earth, 
either in the system of rules which declare and regulate the 
rights and obligations and the conduct of men towards each 
other, or in the methods of procedure by which those rules 
are enforced. Substantially the same principles of right con- 



420 ADMINISTRATION OF JUSTICE 

duct and fair dealing among men obtain in all civilized 
nations, and each country has produced a system of law, 
more or less original to itseK, suitable for the application of 
these principles to the customs, habits, modes of Hving, and 
business ways of its own people. The utmost that we can 
say with confidence regarding the system which has grown 
up in England and America is, that it is better adapted to 
our ideas and our ways of thinking and acting than any other 
system. 

No part of the duties imposed upon the Government of the 
United States in the exercise of authority over the islands 
yielded or ceded by the Treaty of Paris, ^ with their miUions of 
inhabitants, called for more study and consideration than the 
solution of the question how far and in what direction the 
system of laws under which the people of the islands had 
lived should be changed or modified under the new authority. 
There were those who thought it our duty immediately to give 
to the people of Cuba, of Porto Rico, and the PhiHppines the 
blessings of the common law. A careful study of the subject, 
however, soon led to the conclusion that these people already 
had in force an admirable body of municipal law, regulating 
their rights and obhgations, and far better adapted to their 
needs than the system of rules which we prize so highly for 
the guidance of our own conduct. Certain constitutional 
principles needed to be estabhshed: the laws relating to 
crimes and punishments, and the methods of criminal proce- 
dure which had been adopted and had been used for purposes 
of oppression, needed to be changed; but the great body of 
municipal law which regulated the relation of people to each 

^ The treaty of peace, signed at Paris, December 10, 1898, between the United 
States and Spain, whereby Spain relinquished all claim of sovereignty over and title 
to Cuba; ceded to the United States the island of Porto Rico and other islands then 
under Spanish sovereignty in the West Indies and ceded to the United States the 
archipelago known as the Philippine Islands and comprehending the islands Ijdng 
within a designated line, and the island of Guam. 



DUTIES OF AMERICAN LAWYERS 421 

other was far better for them than anything we could produce 
out of our experience; and it was left, and properly left, sub- 
stantially unchanged. Practically the same course was fol- 
lowed by the very able group of men who undertook the task 
of adapting the laws of Louisiana to the new conditions 
following the cession of that territory to the United States 
by Spain. A similar course was followed after the acquisition 
of Lower Canada by the English in 1763. That province had 
been governed by the laws and ordinances of France and the 
custom of Paris — a mingled system of Roman and Prankish 
law. By the statute of 14, George III, the English law was 
introduced in criminal matters, and the civil law was left 
undisturbed. 

The rules which constitute such a body of law change from 
age to age with changing conditions and opinions. Much 
that was deemed essential in Coke's time seems to us now 
artificial and absurd. Much that we deem essential now will 
doubtless become obsolete and be brushed aside by our 
successors. 

There is no part of our system of procedure to which we 
adhere with a greater degree of intolerance of the different 
methods followed in other countries, than the rules govern- 
ing the production of evidence in the trial of causes. Yet in a 
recent case involving the effect to be given to a foreign judg- 
ment, a very learned and able Federal judge made the 
following observations: 

The methods of investigation in different countries are adjusted to 
the conceptions of expediency and propriety that prevail in each, and it 
would be mere bigotry to assert that, upon the whole, the truth of dis- 
puted facts is not as well ascertained in France or Holland or Germany 
as it is in England or the United States. Our law of evidence is largely 
a series of negations, sedulously framed, to exclude from consideration 
all indicia of the truth which do not fall within the class of those it regards 
as competent and safe, while iu continental countries a larger latitude of 
investigation is indulged. In matters of evidence and procedure, to say 



422 ADMINISTRATION OF JUSTICE 

nothing about the weightier matters of law, the wisdom of yesterday is 
the folly of today; and it is doubtful whether our present methods do 
not differ as greatly from those of the recent period, when parties were 
not permitted to testify, as they do from the methods of continental coun- 
tries. Who can say with reason that our system of investigation is more 
infallible than that of France; or that a French citizen, sued here, could 
not as justly complain of our rules of evidence, or of a bill of discovery 
which compels him to exhibit his case in advance to his adversary, as one 
of our citizens sued in a French court could of the methods of procedure 
there ? ^ 

And upon this proposition he had the subsequent approval 
of the Supreme Court of the United States.^ 

In all this field of the law regulating the relations of citizens 
to each other, the proper function of the lawyer is to promote 
rational progress; to maintain stability against aU fads and 
crude innovations and at the same time to keep the develop- 
ment of the law moving with equal step abreast of the prog- 
ress of the age, satisfying the moral sense of the time and 
meeting the changuig conditions of human life and activity. 
Lessons are to be learned from other countries. Practical 
common sense is to be applied to outworn rules. Wrong con- 
stantly assumes new forms and adopts new methods, and the 
spirit of the law must answer with new expression and rem- 
edy. The law always tends to become fossilized; procedure 
always tends to become technical and comphcated; eternal 
vigilance and ever-recurring reform are the price of efficiency. 
The obligation to lead in these rests first upon the lawyer. 

"When, however, we turn to the American law which regu- 
lates the relations of government and the agents of govern- 
ment to the private citizen, we find a class of rules which it 
is essential to preserve inviolate in full force and vigor; and 
as to these we cannot for a moment admit superiority or 

1 The case referred to in the text is Hilton v. Guyot, decided by the Circuit Court 
of the United States for the Southern District of New York in 1890, by the Honor- 
able William J. Wallace as Circuit Judge; the extract quoted by Mr. Root is from 
Wallace's opinion (42 Fed. Rep. 249, 253). 

2 Hilton c. Guyot (1894) 159 U. S. 113. 



DUTIES OF AMERICAN LAWYERS 423 

equality of merit in any system which does not embody them 
and make them effective. 

We need not concern ourselves especially about the mere 
declarations of the general principles of justice and liberty. 
Most nations profess adherence to those principles. The first 
French Republic easily led the world in fine words about 
liberty, equality and fraternity, accompanied by the most 
appalling violation of every human right. The most sadly 
misgoverned republics of South and Central America live 
under constitutions which have copied, with various improve- 
ments of style, the most admirable passages of the Bill of 
Rights. The most flagrant usurpations of power, and the 
most despotic denials of private right in modern times have 
been accomplished in avowed furtherance of the same general 
principles of liberty which we profess. 

But we have a class of secondary provisions designed to 
give to the private citizen the practical benefit of the general 
principles of liberty and justice, and that we should hold to 
these is all-important and essential. These provisions seldom 
themselves declare the principle to which they are designed 
to give effect. They secure to the individual citizen certain 
specified statutory rights, the reason for which is not always 
apparent on the surface; and it frequently happens in individ- 
ual cases that the assertion of these specified rights appears 
to the public to be technical and contrary to the justice 
of the case. Yet unless rules of law securing these specified 
rights are maintained inviolate, the general principles which 
we profess are not practically available for the protection of 
any citizen. The declaration of a principle in favor of liberty 
is no protection to your liberty and mine without the second- 
ary provisions requiring judicial officers to allow writs of 
habeas corpusor someequivalent specified definite right in the 
course of procedure. Spain professes as high a regard for the 
principles of liberty as we do. Yet in 1899 we found hundreds 



424 ADMINISTRATION OF JUSTICE 

of prisoners in the jails of Cuba who had been imprisoned for 
years without trial for want of some definite and certain way 
in which they could avail themselves practically of the prin- 
ciple. One of these wretches had been imprisoned for eleven 
years theoretically awaiting trial. General declarations in 
favor of fair, impartial and speedy trial for persons accused of 
crime, are worthless without specific provisions enabling the 
accused to require that he be brought to trial or set free, that 
he be acquainted with the evidence against him, that he be 
confronted with the witnesses against him, that he have pro- 
cess for the production of his own witnesses, that he be pro- 
tected ui refusing to testify against himself, and that he have 
counsel for his defense. General declarations of the inviola- 
bility of contracts are worthless without specific provisions 
enabliug the individual citizen to bring to the test of judicial 
determination the question whether legislative acts do impair 
the obhgation of contracts in which he is interested, and 
requiring all courts and public officers to treat as nuUities 
legislative acts which are adjudged to impair such obhgation. 
This class of specific and definite provisions of a secondary 
nature is the sole protection of the individual citizen against 
the arbitrary exercise of the tremendous powers with which 
the agents of government are invested. The fact that this 
power of government is derived from the people is no certain 
protection for the individual. In conspicuous cases to which 
pubhc attention is attracted pubhc opinion may compel a 
just exercise of power; but ia the rush and compHcation of 
our crowded life the affairs of the poor and humble, who most 
need protection, are but little noted, and injustice visited 
upon them brings no immediate penalty. Because of the fact 
that these secondary rules do not themselves declare a prin- 
ciple, that many of them appear to be technical, that many 
of them appear to be mere rules of procedure and of evidence, 
that occasionally their assertion does not appear to promote 



DUTIES OF AMERICAN LAWYERS 425 

the justice of the particular case, — they are often regarded 
with disfavor by the thoughtless. If the agents of gov- 
ernment are permitted to override these rules when they 
think justice in the particular case requires it; if the rule 
is not to be maintained as a rule inviolate in every case, then 
there is nothing left but the judgment of the oflScer in every 
case, and the protection of all citizens alike against arbitrary 
power is swept away. One of the great Chicago daily news- 
papers a few weeks ago published the fact that a defendant in 
a criminal prosecution had secured a writ of habeas corpus, 
and observed that he would doubtless continue to obstruct 
the proceeding by similar technicalities. If the editor of that 
journal were unjustly accused of crime and kept incommuni- 
cado for a few weeks he would change his opinion regarding 
the character of the writ of habeas corpus. Yet in carrying to 
the minds of his readers the idea that he expressed concerning 
that great writ of right, he was weakening the safeguards of 
his own liberty, and of the liberty of his children after him. 
In no country and in no age have the practical provisions of 
law designed to secure to the private citizen the application 
of the principles of hberty and justice for his protection 
against oflScial power, been made so broad, so effective and 
adequate as in the countries following the course of the com- 
mon law and inspired by the Anglo-Saxon ideas of i>ersonal 
liberty and property rights. These practical rules are the 
most invaluable part of our national inheritance, and in some 
most important respects they have been made more adequate 
and secure here than in any other country. Upon their pres- 
ervation in living force depends the whole structure of our 
free government. They can be preserved only by intelligent 
appreciation of their value on the part of the people of the 
United States. It is the duty and the privilege of the lawyers 
of the United States to promote such an appreciation among 
all our people; to educate each successive generation to a 



426 ADMINISTRATION OF JUSTICE 

knowledge of the reasons why these provisions were adopted 
and why they should be jealously guarded against all assault. 
There is one general characteristic of our system of govern- 
ment which is essential and which it is the special duty of 
lawyers to guard with care — that is, the observance of 
limitations of official power. This observance can be secured 
only by keeping alive in the public mind a sense of its vital 
importance. There is a constant tendency to ignore such 
limitations and condone the transgression of them by public 
officers, provided the thing done is done with good motives 
from a desire to serve the public. Such a process if general is 
most injurious. If continued long enough, it residts in an 
attitude of personal superiority on the part of great officers 
which is inconsistent with our institutions, a destruction of 
responsibility and independent judgment on the part of lower 
officers, and a neglect of the habit of asserting legal rights on 
the part of the people. The more frequently men who hold 
great power in office are permitted to override the limitations 
imposed by law upon their powers, the more difficult it 
becomes to question anything they do; and the people, each 
one weak in himself and imable to cope with powerful officers 
who regard any questioning of their acts as an affront, gradu- 
ally lose the habit of holding such officers accountable, and 
ultimately practically surrender the right to hold them 
accountable. The countries which have been governed by 
Spain as colonies, or have derived their systems of law from 
Spain, have afforded many examples of the injurious effect 
of such a process. It has been a common practice in those 
countries to provide against failure in duties on the part of 
subordinate and local officers not by holding these officers 
directly responsible to the people or the sovereign, but by 
vesting in the officers of higher grade rights of " supervision, 
intervention and control," to be exercised when necessary; 
and the result in such cases has been practically unlimited 



DUTIES OF AMERICAN LAWYERS 427 

control by the superior officer exercising the power at will. 
The ultimate effect upon the people governed is a concession 
to the superior officer of the general right to control their con- 
duct and an absence of the idea of personal independence. 
The people of a Philippine township assume as a matter of 
course that they are bound to do what the presidente of the 
town tells them to do. They submit themselves to his orders, 
and the idea that within certain definite limits prescribed by 
law he has authority and that beyond those limits he has 
none and they are not bound to obey, has no reality for them. 
They will require a long course of education and training to 
enable them to grasp and act upon such an idea. The 
absence of this conception is the chief obstacle to the attain- 
ment of capacity for self-government by the Filipinos. No 
community which has not that conception in force and effect 
can maintain the type of independent manhood necessary to 
self-government. Another illustration of not insisting upon 
limitations of official power is to be found in the frequent 
irresponsible dictatorships in Central and South America. 
The practice of providing against local disturbances by con- 
ferring upon the executive, authority to suspend constitu- 
tional guaranties, has times without number resulted in those 
countries in the executive's sweeping away at will all Hmi- 
tations upon his power and becoming an absolute dictator. 
Constitutional limitations upon legal power in such countries 
come to be regarded as but formal matters to receive atten- 
tion only when it suits the will of the officer upon whom the 
ineffective and illusory limitations are imposed. A few years 
ago a South American republic elected a president and a vice- 
president under a constitution which provided that when the 
president was absent from the capital the vice-president 
should fill his place, and which further provided that when 
public order was disturbed the president might proclaim that 
fact and should thereupon have power to issue decrees having 



428 ADMINISTRATION OF JUSTICE 

the force of legislative enactments. The vice-president soon 
became tired of being only vice-president, and secm*ing the 
adherence of the soldiers in the vicinity he seized the person 
of the president and put him in jail a few miles from the capi- 
tal. Thereupon he proclaimed that the president being absent 
from the capital, he (the vice-president) assumed executive 
functions. Having thus attained the presidency, he issued a 
further proclamation that pubHc order was disturbed (as 
indeed it had been by his own act), and thereupon he assumed 
as chief executive the exercise of legislative functions. 
For years the people of that country, which called itself a 
repubHc, submitted to be governed by this usurper who had 
thus followed the forms and violated the spirit of their con- 
stitution. The people had grown accustomed to official dis- 
regard of the limitations imposed by law upon official power. 
It is not in this way that hberty can be preserved. Constant 
accountabihty of public officers for strict observance of the 
limits imposed by law upon the exercise of the great powers 
vested in them, and customary and undoubting assertion of 
the private right of the citizen to have no power exercised 
over him except in strict accordance with the letter and the 
spirit of the law: these are the essential conditions of free 
government and personal independence. The exercise of 
power not conferred by law may in a particular case destroy 
no man's property nor restrain his liberty; but it weakens the 
title to every man's property and injures every man's hberty, 
because it is one step in a process which if continued would be 
destructive of our free institutions. 

Abundant evidence that our people have not become indif- 
ferent to these necessary limitations is furnished by the fre- 
quency with which pohtical opponents impute disregard of 
them to pubHc officers. The charge is often unfounded and 
often made upon sUght foundation with great exaggeration. 
But the fact that it is made, shows that political leaders, who 



DUTIES OF AMERICAN LAWYERS 429 

make a business of studying public sentiment, recognize that 
if they can make the people of the country beheve that a pub- 
lic officer has usurped power which does not belong to him, he 
will be condemned without regard to the motives of his 
action. The cries of emperor, czar, and man-on-horseback, are 
but extravagant appeals to an instinct which ought to exist 
and happily does exist among us, against submission to 
unlawful authority however trifling may be its exercise and 
however beneficent its despotism. 

The extravagance and lack of foundation for many of these 
appeals, however, involve a danger which should not be 
ignored. It is, lest the cry of wolf should be heard so often 
that men will become incredulous and indifferent and turn a 
deaf ear to statements and proofs of real encroachments, 
made with moderation and not for political effect, and that 
thus, as so frequently happens, indiscriminate and unfounded 
charges against the innocent shall serve as a protection to the 
really guilty. 

No one is so well fitted as the lawyer to ascertain the true 
limits of official authority, and no one can do so much as he, 
to form public opinion regarding this class of questions, upon 
the lines not of partisan political advantage, but of independ- 
ent and impartial judgment. Upon the exercise of this kind 
of judgment by the people depends that effective service by 
public officers which comes from the feeling that they will be 
sustained in the full and courageous discharge of their duties 
within the Hmits of their authority, and the preservation of 
the independent spirit which will always without violence or 
conscious effort hold officers to strict accoimtability when- 
ever they transgress those limits. 

You gentlemen who are about entering upon the profession 
of the law will argue many causes to be recorded in judicial 
reports. You will construe and apply and take part in mak- 
ing many statutes. You will assert personal rights and pro- 



430 ADMINISTRATION OF JUSTICE 

tect individual liberty and individual property. Many of you 
will hold public office. Some of you will play a conspicuous 
part in the government of your country. Do not, I beg you, 
forget that all the statutes and the constitutions upon which 
they are based, all the judicial reports and the judgments 
which they record, are worthless, are but empty and mean- 
ingless form, without efficacy for peace or order or justice or 
hberty, except as constitutions and laws and judgments truly 
interpret the judgment and moral sense of the whole people 
who govern and are governed. You will strive for your 
clients in many courts; but it will be yoiu" high privilege to 
strive also for the law itseK, in the great forum of public 
judgment. There you may u^e aU your opportunity, all 
your learning, all your experience, in pleading with the people 
of our country for the perpetual life of the great rules for 
the protection of property and liberty, which underlie our 
institutions, and which only the governing people can keep 
alive in our land. 



THE REFORM OF PROCEDURE 

PRESIDENTIAL ADDRESS AT THE ANNUAL MEETING OF 

THE NEW YORK STATE BAR ASSOCIATION 

SYRACUSE. JANUARY 19, 1911 

THE bench, the bar, and the public agree that there is 
undue delay in our judicial proceedings. A considerable 
number of able and public-spirited lawyers, including several 
committees of this Association and the local bar associations 
of this state, have addressed themselves to the work of devis- 
ing amendments of the law which should make our procedure 
more swift and certain in reaching the ends of justice. They 
have made many suggestions of great value looking to 
changes in the code of procedure. Some of these have been 
adopted, and there are pending some the adoption of which 
would be of material advantage. 

It is not my purpose, in selecting the reform of procedure 
as the subject for the remarks which seem appropriate on the 
part of a presiding officer, to discuss these suggestions or to 
offer others relating to the details of the code. I wish rather 
to emphasize the general principle which we will all agree 
ought to control the acts of the state in dealing with this 
subject. The principle is, that procedure should be made 
as simple as possible. The fewer statutory rules there are 
to create statutory rights intervening between a citizen's 
demand for relief and the court's judgment upon his demand, 
the better. The more direct and unhampered by technical 
requirements the pathway of the suitor from his complaint 
to his judgment, the better. It seems to me that we have 
reached a point in our practice where the application of 
this principle requires very thorough and radical action: 

431 



432 ADMINISTRATION OF JUSTICE 

that mere improvement of the code of procedure in its details 
will not answer the purpose. 

The original Field Code of Procedure of 1848 contained 391 
sections and was comprised in 169 of the small, loosely- 
printed pages of the session laws of that time. The last edi- 
tion of our present code at which I have looked contains 
3,384 sections, a large proportion of them dealing with the 
most minute details. It is doubtless true that some provi- 
sions of substantive law have found their way into this 
enormous mass of statutory matter, and that some special 
branches of procedure are covered by the present code which 
were not included in the original code. Nevertheless a 
comparison between the two statutes reveals plainly the fact 
that for many years we have been pursuing the policy of 
attempting to regulate by specific and minute statutory 
enactment all the details of the process by which, under a 
multitude of varying conditions, suitors may get their rights. 

Such a policy never ends. The attempt to cover, by express 
specific enactment, every conceivable contingency inevitably 
leads to continual discovery of new contingencies and unan- 
ticipated results, requiring continual amendment and supple- 
ment. Whatever we do to our code, so long as the present 
theory of legislation is followed, the code will continue to 
grow and the vast mass of specific and technical provisions 
will continue to increase. I submit to the judgment of the 
profession that the method is wrong; the theory is wrong; 
and that the true remedy is to sweep from our statute books 
the whole mass of detailed provisions and substitute a simple 
practice act containing only the necessary, fundamental 
xules of procedure, leaving all the rest to the rules of court. 
"When that has been done the legislature should leave our 
procedure alone. 

We may well aid this simplification of procedure by apply- 
ing the same principle of simplicity to certain changes in the 



THE REFORM OF PROCEDURE 433 

substantive law with a view to making the practical applica- 
tion of the law simple; and, most important of all, we should 
observe that principle in determining the standards of 
conduct at the bar. 

The condition in which we find ourselves is that, in varying 
degrees in different parts of the state, calendars are clogged, 
courts are overworked, the attainment of justice is delayed 
until it often amounts to a denial of justice, the honest suitor 
is discouraged, the dishonest man who seeks to evade his just 
obligations, is encouraged to litigate for the purpose of post- 
poning them. Such a condition is not sporadic and occa- 
sional. It is continually recurrent. It is the result of a 
natural tendency which appears whenever the conduct of 
affairs in any branch of the social life of man is entrusted to a 
particular class of men specially qualified for that special 
work by learning and skill beyond the great body of their 
fellows. The conduct of such affairs by such a class becomes 
an art. The art becomes a mystery. Rules and formulas 
originally designed as convenient aids to the attainment of 
ultimate ends become traditions and dogmas, and belief in 
their importance supersedes the object which they were 
originally meant to subserve. Special training develops in- 
tellectual acuteness and fine and subtle distinctions. The 
sense of proportion is lost and the broad, simple, direct 
methods which alone are really useful in helping plain people 
to attain the substantial objects of practical life become 
entangled in a network of form and technical refinement. 

This tendency shows itself in some degree in every learned 
profession. It often affects the organization and control of 
political methods. It often affects the conduct and adminis- 
trative regulation of government. History is full of illustra- 
tions of its working in religion. The development of the fine 
arts presents a record of a multitude of revolts against the 
results of its influence. It affects the development of sub- 



434 ADMINISTRATION OF JUSTICE 

stantive law. Most of all it characterizes the growth of legal 
procedure. There more frequently than anywhere else the 
system takes the place of the object for which the system was 
created. We need not go back for illustration to the Medes 
and Persians, or to the priesthood of Egypt, or ask why Cato 
wondered that the Roman augur could keep from laughing 
when he looked a Roman augur in the face; for the develop- 
ment of our own system of common law and equity is familiar 
to us all. 

We are now in about the same condition as respects a great 
mass of technical and specific rules obstructing the course of 
justice as we were in 1848, when the old law and equity prac- 
tice of the state was swept away by the adoption of the Field 
Code — that great enactment which gave form to the proce- 
dure of practically every American state following the course 
of the common law, and which ultimately impressed itseK 
upon the slow-moving but considerate judgment of the Eng- 
Hsh people. We are now in about the same condition in this 
respect as was England in 1873, when the British Parhament 
passed the new Judicature Act and yielded to the principle of 
simplicity in litigation, the allegiance which she has ever 
since maintained and strengthened. Curiously enough, at 
about the same time when England adhered to the principles 
of the reformed procedure we were taking the first great step 
towards the abandonment of those principles by making the 
basis of our further development in procedure the revision of 
the code by my old friend, Mr. Montgomery Throop. There 
is but one way to deal successfully with the condition result- 
ing from such a process, and that is not by palliatives in pro- 
cedure but by revolution in procedure. The New York 
enactment of 1848 was revolution. The British enactment of 
1873 was revolution. And it is revolution that we need now. 

Let me recall some of the effects of such a system as we now 
have, well known as they are to all of us. The system of 



THE REFORM OF PROCEDURE 435 

attempting to cover every minute detail with legislation 
appropriate to every conceivable set of circumstances is to 
create a great number of statutory rights which the courts 
are bound to respect because they are the law; which suitors 
are entitled to demand because the law gives them. In some 
cases they may contribute to the attainment of justice. In 
other cases they may obstruct it. The courts cannot apply 
the rule of justice because they must apply the law. These 
artificial statutory rights become the subject-matter of special 
litigation intervening between the demand for redress and the 
attainment of it. 

The energies of attorneys and counsel and clients, their 
time and labor, are devoted to these statutory proceedings 
instead of being addressed to the trial of the case. Pending 
the disposition of the multitude of motions which it is pos- 
sible to make, and which in number are often in inverse pro- 
portion to the merits of the case, the final disposition of the 
case is postponed. Serious and long-continued delay is the 
result in many cases. Witnesses die or leave the jurisdiction. 
Their memories become vague and the estabHshment of facts 
becomes more difficult. Suitors become tired and discouraged, 
or their means are exhausted. Conditions change, and the 
relief, when attained, is often deprived of much of its value. 

The facilities for delay afforded by this system lead to 
innumerable defenses for the purpose of delay. These encum- 
ber the calendars and occupy the time of the courts, and 
prevent the hearing and decision of honest controversies. 
The system tends to breed a class of code lawyers, acute and 
subtle practitioners, skillful in baffling the efforts of honest 
men seeking to get their rights and with no conception what- 
ever of the principles of jurisprudence or of the high duty of 
the advocate to secure substantial justice for his clients. At 
their hands justice is easily tangled in a net of form. The 
public estimate of the profession of the law is lowered. 



436 ADMINISTRATION OF JUSTICE 

Public confidence in the administration of justice is weakened. 
The general effect of this great mass of statutory provisions 
as a whole is not to facilitate, but to impede and hamper the 
courts in rendering prompt and efficient justice. 

All this is wholly unnecessary. Our coiu-ts desire to do 
justice; they are competent to do it; and they will do it if 
left to themselves imder the guidance of a few simple funda- 
mental rules and unhampered by a multitude of statutory 
requirements. They are perfectly competent to regulate the 
procedure before them by their own rules, which they can 
adapt to the requirements of the cases that arise, so that 
whatever is necessary in any case to secure the ascertainment 
of the facts and the apphcation of the law to them shall be 
done, and so that nothing else shall be required. 

I have always thought that Mr. Justice Stephen J. Field's 
printed but unpublished little book called " Early Days in 
California " was most instructive to a student of the law. In 
the early period of the great gold excitement of 1849, some 
fifteen thousand men, mostly miners, found themselves col- 
lected in the mining camp of Marysville. In that hitherto 
almost impeopled region there was no government and no 
administration, there were no officers of the law, and there 
were no laws of which any one there knew anything. The 
need of government was apparent and the miners got 
together and elected Stephen J. Field alcalde of Marysville. 
Under that title he proceeded to hold court. There was no 
procedure. There were no laws to describe or define his 
powers. There were no statutes or precedents estabhshing 
the rights of the parties who came before him; but he heard 
complaints; and with the whole force of the general concur- 
rence of that rude community, he required the persons com- 
plained of to answer. He tried and determined the issues. 
He enforced the judgments. He tried and punished offenders 
against those rules of right conduct which obtain generally 



THE REFORM OF PROCEDURE 437 

in civilized communities, and he rendered justice to the satis- 
faction of Marysville and the peace and order of the com- 
munity. It may be useful sometimes and it is refreshing 
always, to look out from the refinements and subtleties of 
our sophisticated system for administering the law upon 
some simple and direct and swift enforcement of the funda- 
mental principles of justice, and to question whether in all 
our elaborate contrivance of means to attain this end we may 
not be obscuring and forgetting the end itself. 

The real strength of the tendency to make provisions for 
arbitration of disputes in the rules of business organizations, 
rests upon a feeling that, if the members of the particular 
trade or branch of business can get away from lawyers and 
the law's delays and the cumbrous technical and expensive 
procedure of our courts, they can have the merits of their 
disputes determined swiftly, certainly, inexpensively, and 
adequately. I am inclined to think they are generally right. 

Consider the recent development of law administration in 
the Public Service Commissions, and the Interstate Com- 
merce Commission of the United States. They have not yet 
embarrassed themselves by any code of procedure. They 
have not had time. Yet they are hearing and determining in a 
most adequate and satisfactory way questions of fact and 
law of the most complicated nature and of vast importance. 

It would be difficult to conceive of litigation more impor- 
tant or more complicated than the great controversies 
between nations which the civilized world is more and more 
tending to submit to the judgment of arbitral tribunals. Yet 
the Permanent Court of Arbitration at The Hague has prac- 
tically no rules of procedure. It cannot have them because 
the forty-four nations who are signatories to the Hague Con- 
vention for the Pacific Settlement of International Disputes 
differ so widely in their ideas of procedure that the adoption 
of any single system would be impossible. Accordingly that 



438 ADMINISTRATION OF JUSTICE 

great convention, which first gave practical form to the hopes 
and aspirations that the apostles of peace on earth had been 
voicing for centuries, contained only a few very simple and 
fundamental provisions regarding the constitution of the 
court and the way to get a decision from it, leaving the field 
of procedure, in the main, to be determined by the common 
sense of the parties and of the court in conformity to the 
requirements of each case as it arises. 

I remember hearing Mr. David Dudley Field, during the 
argument of a cause many years ago, ask Charles O'Connor a 
question as to his position concerning the effect of the plead- 
ings in the case. Mr. O'Connor turned, and, with that inten- 
sity which characterized him (especially when dealing with 
some one whom he did not like) he answered: " I understand 
that under your code, Mr. Field, the plaintiff comes into 
court and tells his story like one old woman and the defend- 
ant comes in and tells his story like another old woman." 
And that was all the satisfaction Mr. Field got. The reply 
was intended as a condemnation of the rather simple code of 
that day, but I^'am not sure that it was a condemnation. The 
old-woman method doubtless has its disadvantages, but I 
am not so sure that they are not to be preferred to the sub- 
tleties of the special pleader and the code lawyer. If we 
could substitute for Mr. O'Connor's old woman a man of 
common sense with a reasonable knowledge of substantive 
law and a trained sense of materiality and relevancy, we 
should have come very near the chief end and object of all 
legal procedure. I think it is safe to say that if we must 
choose between two much procedure and too little we better 
have too httle. 

I wish to guard here against the misapplication of what I 
have said lest it have the effect of over-statement. It should 
not be inferred from what I have said about our procedure 
that in general, considering by itself each case which does 



THE REFORM OF PROCEDURE 439 

come to a final judgment, the ends of justice are not attained. 
As a rule, in most cases which reach that point justice is done 
because we have honest and competent judges and an up- 
right, independent, fearless, and loyal bar. Yet it is done in a 
great proportion of cases, not by the aid of, but in spite of, 
this vast multitude of statutory restrictions, and with an 
enormous waste of time and labor and expense and delay. I 
do not mean to be understood as asserting that a great part 
of the provisions contained in our code do not point out quite 
reasonable and proper methods of procedure to be followed 
in some cases to which they seem to be applicable, and prob- 
ably in the cases which the legislature has had in mind in 
enacting them into law. Yet in a great number of other 
cases they are burdensome and obstructive; and it is true in 
general that the more detailed provisions of law are, the more 
certain they are to be misfits in many cases to which they 
come to be applied. I do not mean to say or to imply that 
the members of the bar are subject to just criticism for in- 
sisting in each case entrusted to them that their clients shall 
have the benefit of all the statutory rights which the legisla- 
ture has provided. Suitors are entitled to the rights the law 
gives them. They are entitled to have their counsel assert 
those rights and to have courts award them. I do insist, how- 
ever, that the law ought to be such that what a suitor is 
bound to do or to suffer by way of means or prehminaries 
leading to a final decision on the merits of his case, should be 
determined, as far as possible, by the common-sense require- 
ments of that particular case, and as little as possible by 
compliance or failure to comply with detailed and technical 
statutory requirements designed to cover ten thousand dif- 
ferent cases as well as his. I do insist that, notwithstanding 
the many just decisions rendered by our courts, when we 
consider the prevalent delay, the unnecessary expenditure of 
time and effort and money, the hindrance of just rights 



440 ADMINISTRATION OF JUSTICE 

through long-continued defensive Htigation without sub- 
stantial merit, the Htigants who abandon their pursuit of 
justice through weariness or lack of means, the citizens who 
abandon their rights rather than incur the annoying and 
injurious incidents of litigation in the effort to enforce them, 
the emboldening of the unscrupulous in whose hands delay 
and difficulty and expense of litigation are weapons with 
which to force compromise without just grounds — when we 
consider all these incidents of our present condition we are 
bound to say that the general interests of the administration 
of the law require a thorough and radical change. 

The situation cannot be met by merely increasing the 
judicial force. We have often tried that expedient, but 
always ineffectually. The only real remedy is to be found 
in reforming the system. 

I have said that the most important thing of all toward 
re-enthroning the principle of simphcity and directness in 
attaining the ends of justice is that we ourselves shall observe 
that principle in determining the standards of conduct at the 
bar. No system will work well unless it is applied in good 
faith. Even though we may escape in a great measure from 
the statutory restrictions which now hamper the courts in 
applying the rule of justice in the particular case to the pro- 
ceedings in that case, the rule cannot be successfully appHed 
unless the sentiment of the profession — the pubHc opinion 
of the bar, makes conformity to that rule a requirement of 
honorable obhgation. 

What I have in mind may be illustrated by reference to 
two proposed provisions which have been much favored by 
our committees and which, it seems to me, should find their 
place among the simple and fundamental provisions of any 
system of procedure. One is, the provision that in every case 
a day shall be given when the parties, through their counsel, 
may come before a judicial officer informally for a rule regu- 



THE REFORM OF PROCEDURE 441 

lating the further procedure in the case, covering the whole 
ground of pleadings, bills of particulars, discovery of docu-^ 
ments, deposition of witnesses, mode of trial, etc. — the 
so-called omnibus summons provision. This would be a most 
useful substitute for the separate, successive motions under 
special statutory provisions now permitted, yet I can well see 
that its effectiveness could be largely destroyed if the bar 
generally were to attempt to evade it instead of accepting in 
good faith the opportunities which it would afford. 

The other provision is, that no error of ruling upon the 
admission or rejection of evidence or otherwise in a trial, 
shall be ground for reversal unless it appears that a different 
ruling would have led to a different judgment. Real acqui- 
escence in such a rule by the bar would put an end to the 
incessant objections and exceptions which now disfigure so 
many of our trials. We share with England and her colonies 
a highly artificial and technical body of rules of evidence such 
as obtain nowhere else in the civilized world. These rules 
afford most delightful exercise for intellectual acumen, and 
they have some advantages. They have also great disad- 
vantages, and it is by no means certain that in the long run 
they produce any better results than the simple and natural 
methods which obtain in the trial of cases in countries that 
follow the course of the civil law, and where the method of 
Mr. O'Connor's hypothetical old woman controls in the giv- 
ing of testimony as well as in the statement of the case. The 
fundamental disadvantage of this Anglo-American system of 
rules is the fact that, when strictly and technically applied, 
they do not correspond with the instincts or the habits or the 
ideas of common sense of any plain, sensible layman in this 
world. Their strict application continually impresses clients 
with a sense of injustice because they think they are not 
getting their case before the court, and it impresses witnesses 
with a sense of being bottled up and prevented from telling 



442 . AD^nXISTRATION OF JUSTICE 

the truth. In the strictness and technicality with which we 
enforce those rules we go far beyond England or, so far as I 
know, any of her colonies. I think we stand alone among 
ci^^lized countries in the obstacles that we interpose to the 
gi\Tng of testimony in the most natural way. How common 
it is to see a witness try^ing to tell his story, hindered and wor- 
ried and confused by being stopped here and there again and 
again by objections as to irrelevancy and immateriahty and 
hearsay, when what he is trv^ing to say would not do the 
sHghtest harm to any one and would merely help him to state 
what he knows that is really competent and material. Such 
a rule as I have now mentioned would take away the faint 
hope of a technical reversal which underKes such objections; 
but the legal right to object would continue, and incessant 
technical objections would probably continue to prolong 
many trials and impede the speedy ascertainment of the 
merits of many causes unless the bar in good faith were to 
accept as a rule of conduct that no objection should be made 
or point raised not really affecting the merits. 

I presume upon your not remembering something that I 
said at Rochester a year ago, to repeat that we are too apt at 
the American bar to act as if in Htigation we are playing a 
game, with the judge as referee of the game. Only the bar 
itself can cure that, and realize the highest usefulness of a 
noble profession by devoting its learning, its skill, and its best 
effort to securing for every suitor, as promptly as possible, a 
fair and final judgment on the merits of his case. 

The complication of our procedure is only one phase of a 
general tendency affecting the whole field of government and 
law in the rapidly developing, intricate, and interdependent 
social conditions of our time. In the fundamental act at the 
polls, when the sovereign people select those who shall make 
the laws and shall administer them, the voter has placed in 
his hands a ballot of enormous size, sometimes too large to be 



THE REFORM OF PROCEDURE 443 

spread out fully in the voter's booth, and with such a vast 
array of names for such a great number of offices to be filled, 
and with so many questions to be decided in the affirmative 
or negative, that the best trained and best informed mind 
must fail to do its whole duty intelligently. The need for 
simplification here is recognized by the advocates of the 
short ballot, who have my most sincere good wishes. 

The mass of our statutes has grown so great that the vol- 
umes constitute a library in themselves and require another 
library of indexes and digests and guides to ascertain what 
the law is. We are continually trying to simplify this condi- 
tion by consolidations and revisions and codifications, all of 
which are useful. 

The mass of judicial reports has grown so great that it 
begins to seem as if before long we shall have to burn our 
books like the Romans and begin anew. And indeed, where 
decisions can be found in support of every side of every pro- 
position, authority is in a great measure destroyed and we do 
begin anew in determining by the light of reason which 
authority shall be followed. I wish that our judges could real- 
ize officially what so many of them agree to personally — that 
restating settled law in new forms, however well it is done, 
complicates rather than simplifies the administration of the 
law; that the briefest of opinions usually answers the purpose 
of the particular case; and that the general interests of juris- 
prudence justify reasoned opinions only when some question 
of law is determined which has not been determined before 
by equal authority. 

On every side the increasing complication of life calls for 
vigorous and determined effort to make the working of our 
governmental system more simple. Our primary concern as 
lawyers associated to consider the public aspects of our pro- 
fessional work and to promote the usefulness of the profession 
to the community, is with our own procedure. 



JUDICIAL DECISIONS AND PUBLIC 
FEELING 

PRESIDENTIAL ADDRESS AT THE ANNUAL MEETING OF THE 

NEW YORK STATE BAR ASSOCIATION IN 

NEW YORK CITY, JANUARY 19, 1912 

THERE appears to be an increasing tendency among 
Americans towards impatience with the courts whenever 
judicial decisions do not agree with our wishes. 

The provisions for the recall of judges already adopted in 
some states and widely advocated in others are an exhibition 
of this impatience and a demand for more unchecked oppor- 
tunity to make the judges feel its effect. 

A distinguished judge is reported to be considered for pro- 
motion to the Supreme Bench. Thereupon there arises, not 
a discussion regarding his ability or integrity or experience, 
but an outcry that he ought not to be promoted because 
he decided a two-cent fare case against the wishes of some 
people or many people. 

The Court of Commerce decides that the Interstate Com- 
merce Commission has taken too broad a view of its powers 
under the law in a particular case and the immediate reaction 
is, not an acceptance of the decision and a proposal to change 
the law so as to make the powers broader, or an appeal from 
the decision in order to show by argument that it is wrong, 
but the drafting and introduction of a lot of bills to abolish 
the court. 

A court of great authority decides that a particular form of 
"employers' liability law contravenes the rules established by 
the Constitution and the immediate reaction is, not to procure 
the enactment of a statute which does not contravene those 
rules, or to procure a modification of the rules so that they 

445 



446 ADMINISTRATION OF JUSTICE 

will permit the statute, but it is to condemn the court for not 
entertaining a different opinion. 

There are many indications that, in varying degrees, in 
different parts of the United States this method of treating 
the decisions of courts receives popular sympathy . A gradual 
decrease of respect for judicial decisions can be perceived. 

The general respect for the decisions of our courts, which 
has sustained the judicial branch of our Government as a 
distinctive and necessary part of our constitutional system, 
has been based upon the idea that judicial decisions are some- 
thing quite distinct and different from the expression of poli- 
tical opinions or the advocacy of economic or social theories. 
Profoundly devoted to the reign of law, with its prescribed 
universal rules as distinguished from the reign of men with 
their changing opinions, desires and impulses, our people 
have always ascribed a certain sanctity to the judicial office, 
have invested its holders with a special dignity, and have 
regarded them in the exercise of their office with a respect 
amounting almost to reverence, as above all conflicts of 
party, and of faction, because these officers are the guardians 
of the law as it is. Our people have been imbued with a deep 
sense of the truth that upon the preservation of the law as it 
is at every moment in its course of continuous change and 
development, depend the preservation of order, the preven- 
tion of anarchy, the protection of the weak against the 
aggression of the strong, the perpetuity of free institutions, 
the continuance of liberty and justice; matters of infinitely 
greater concern than all the new proposals which excite the 
activity and controversy of parties and political leaders, of 
critics and reformers. 

If this view is to be changed and the decisions of our courts 
are to be considered in the same way and upon the same pre- 
sumptions and with no greater respect for authority than in 
the case of poHtical opinions, the authority of the courts will 



JUDICIAL DECISIONS 447 

inevitably decline, the independence of the judicial branch 
will cease, judicial decision will interpret the law always to 
suit the majority of the moment, and the recall will be the 
natural and logical expression of the relation to be assumed 
between the people and the courts. 

What are the causes of this impatience with the courts ? 
It is plain that the difficulty does not arise from any deteri- 
oration in the character of the judges who preside in our 
courts. There never has been a time when the bench in 
America, both under the federal and state systems, has been 
filled by men of greater purity, ability, and strength and 
uprightness of character. There never has been a time when 
the favor of the rich or of men powerful in social or business 
affairs played so small a part in determining the selection of 
judges. Now, if ever, the terms of the federal judicial oath 
truly represent the controlling influence of judicial life in 
both the nation and the states. 

I, , do solemnly swear (or affirm) that I will administer justice 

without respect to persons, and do equal right to the poor and to the 
rich, and that I will faithfully and impartially discharge and perform all 

the duties incumbent up>on me as according to the best of my abilities 

and understanding, agreeably to the Constitution and laws of the United 
States: So help me God.^ 

It is true that defects in procedure, that technicalities and 
delays which impede the course of justice here and elsewhere 
have tended to decrease the general respect of the com- 
munity for every one concerned in the administration of the 
law, but I think this applies less to the courts themselves 
than it does to the bar, and justly so. It is the bar that 
makes up a great part of all our legislatures and is respon- 
sible for the stupid and mischievous legislation regarding 
procedure which hampers the courts in their efforts to do 
justice. It is the bar which, knowing all the facts and fami- 
liar with all the evils, insists upon the continuance of our 

^ Section 251 of the Jttdicial Code of the United States, March 3, 1911. 



448 ADMINISTRATION OF JUSTICE 

metliods to promote the immimity of criminals and the hin- 
drance of justice to the point of denial. The primary fault 
and the primary duty of reform rest with us. I do not think 
that this matter plays any very great part in the creation of 
the feeling against the courts. 

The real difficulty appears to be that the new conditions 
incident to the extraordinary industrial development of the 
last half -century are continuously and progressively demand- 
ing the readjustment of the relations between great bodies of 
men and the establishment of new legal rights and obhgations 
not contemplated when existing laws were passed or existing 
limitations upon the powers of government were prescribed 
in our Constitution. In place of the old individual indepen- 
dence of life in which every intelligent and healthy citizen was 
competent to take care of himself and his family we have 
come to a high degree of interdependence in which the greater 
part of our people have to rely for aU the necessities of life 
upon the systematized cooperation of a vast number of other 
men working through complicated industrial and commercial 
machinery. Instead of the completeness of individual effort 
working out its own results in obtaining food and clothing 
and shelter we have specialization and division of labor which 
leaves each individual unable to apply his industry and intel- 
Hgence except in cooperation with a great number of others 
whose activity conjoined to his is necessary to produce any 
useful result. Instead of the give and take of free indi\H[dual 
contract, the tremendous p>ower of organization has com- 
bined great aggregations of capital in enormous industrial 
establishments working through vast agencies of commerce 
and emplo;yTQg great masses of men in movements of produc- 
tion and transportation and trade, so great in the mass that 
each individual concerned in them is quite helpless by him- 
self. The relations between the employer and the employed, 
between the owners of aggregated capital and the units of 



JUDICIAL DECISIONS 449 

organized labor, between the small producer, the small trader, 
the consumer, and the great transportmg and manufacturing 
and distributing agencies, all present new questions for the 
solution of which the old reliance upon the free action of 
individual wills appears quite inadequate. And in many 
directions the intervention of that organized control which 
we call government seems necessary to produce the same 
result of justice and right conduct which obtained through 
the attrition of individuals before the new conditions arose. 
Such a readjustment must of necessity be a gradual pro- 
cess. It cannot be produced at a single blow from the mind 
of any one or of any group or interest or class. Opinions 
must and will always differ as to the natm-e of changes which 
should be made and the extent to which they should go, and 
those differences must be settled in some way. There will be 
differences not merely as to what change should be brought 
about, but how it should be accomplished. Mistakes will be 
made, experiments will be tried and will fail, and experience 
wiU suggest more adequate remedies. Ill-conceived schemes 
of legislation or amendment will be attempted and steps will 
have to be retraced. Erroneous views, arising because some 
parts of our people fail to understand phases of our vast and 
complicated industrial life with which they are not familiar, 
must be corrected. Distorted and exaggerated conceptions 
disseminated by men of one idea or by men over-insistent on 
their own personal interests, or over-excited by contemplat- 
ing unhappiness and privation which perhaps no law or 
administration could prevent, have to be reduced to proper 
proportions. Ultimately, step by step through the ordinary 
processes of self-government, through investigation, educa- 
tion, the spread of true understanding of facts and full dis- 
cussion, the process of readjustment is being worked out and 
will be worked out to conform to the mature, instructed, con- 
siderate judgment of the self-governing people of the coimtry. 



450 ADMINISTRATION OF JUSTICE 

It is because in the course of this process of readjustment 
occasionally a court finds that some new experiment in legis- 
lation or in administration contravenes some long established 
limitation upon legislative or executive power, or finds that 
some crudely drawn statute is inadequate to produce the 
effect that was expected of it, or enforces some law which has 
imexpected results, that the present irritation and impatience 
towards the comets have been created. 

There are several things to be said about this feeling. In 
the first place it rests up>on a misconception as to the true 
function of a court. It is not the duty of our courts to be 
leaders in reform or to espouse or to enforce economic or 
social theories, or, except within very narrow limits, to read- 
just laws to new social conditions. Undoubtedly every judge 
is bound to consider two separate elements in his decision of 
a case: One, the terms of the law, and the other, the condi- 
tions of actual life to which the law is to be applied, and it 
is only by considering both, that the law can be applied in 
accordance with its real spirit and intent. But the judge is 
still always confined within the narrow limits of reasonable 
interpretation. It is not his function or within his power to 
enlarge or improve or change the law. His duty is to main- 
tain it, to enforce it, whether it be good or bad, wise or foolish, 
accordant with sound or unsound economic policy. It is very 
important to have reformers and advocates of all good causes 
and thoughtful and public-spirited citizens who are keenly 
alive to the defects in our system of laws and solicitous to 
find means to crn-e them. But the courts are excluded, by 
virtue of the special duty imp>osed upon them, from playing 
any of these parts. Their duty is to maintain and enforce the 
law as it is at the moment, to interpret it in sincerity and 
truth under the sanction of their oaths and in the spirit of 
justice, to accept loyally every change made in it by the law- 
making power, but to stand firmly against any attempt to 



JUDICIAL DECISIONS 451 

ignore it or nullify it, except by the legitimate action of the 
popular sovereign in its making of constitutions, or the legis- 
lative branch of the government in its making of statutes in 
conformity to the constitution. 

This impatience with the courts also proceeds upon a second 
misconception as to the true nature of the remedy for an 
unsatisfactory decision. When a court of last resort has said 
the law is thus and so, and the law as so declared bars the 
way of some popular movement, the true remedy is, not to 
threaten the court with extinction or its members with 
punishment unless they will decide against their convictions; 
but it is to set the lawmaking body in operation to change 
the law, and if a majority of the people wish the law changed 
it will be done. If the community is not satisfied with a law 
as it is declared by the court to be, the thing really desirable 
is, not to coerce or reconstruct a court to say that the law is 
what it is not, but to make the law what the community 
wishes it to be. The only real obstacle to any such course 
rests in the fact that it frequently happens that the people of 
a state or of the country are not yet ready for the change 
which is desired by the impatient ones. These may be merely 
in advance of the rest of the people. It may be, and doubtless 
it frequently is the case, that their views are the views which 
ought to be adopted and which will ultimately be adopted by 
the people in their lawmaking, but the process of securing the 
adoption of new and advanced ideas may be long and tedious. 
It may involve a campaign of education, a reconciliation of 
conflicting views, and much discussion as to the kind and 
form of change. Important changes in the law ought to be 
fully discussed and understood and approved by the mature 
judgment of the people of the country. We have too many 
immature and premature attempts at making laws before 
the subjects to which they relate have been thoroughly 
discussed and mature conclusions have been reached. 



452 ADMINISTRATION OF JUSTICE 

I must believe also that proposals, in whatever form, to 
subordinate the decisions of the courts to the decision of a 
popular majority, whether it be by punishing the judges for an 
unsatisfactory decision through removing them from office, 
or by reviewing their decisions at the polls as distinct from 
reviewing and revising the law upon which they are to decide, 
proceed upon a failure to realize that this involves an aban- 
donment of the most essential feature of our system of 
constitutional government. 

We may grant that inconvenience frequently arises from 
decisions of courts finding that constitutional provisions are 
contravened by legislative action designed to express the 
popular will in particular cases. We may assume that some 
of these decisions are erroneous. It is impossible that there 
should not be some errors among fallible men under any sys- 
tem of government and any distribution of powers, although 
there are probably by no means as many errors as the ardent 
advocates of particular views suppose. But under every 
system and in every field of governmental action it is neces- 
sary to submit to inconveniences. Honest and peaceful men 
are constantly subject to restriction and annoyance from 
rules and regulations which are wholly unnecessary so far as 
they are concerned, but which have to be established and 
maintained in order that dishonest and turbulent men may 
be controlled. All general rules of law work hardship in some 
cases. These incidental effects are a part of the price which 
in organized society we pay for having general rules of law 
and administration. We are frequently very much irritated 
and very impatient under the inconvenience or injury, which 
in viewing some particular incident by itself seems unjustifi- 
able. The true question, however, always is, whether, view- 
ing the working of the general rule as a whole, the rule is so 
necessary to the well-being of the community, and its effects, 
taken altogether, are so valuable, that we ought to submit 



JUDICIAL DECISIONS 453 

to the inconveniences rather than to lose the rule. In consid- 
ering the inconveniences which have arisen from decisions 
of the courts enforcing constitutional provisions as against 
popular statutes, it is a mistake to consider the particular 
incident by itself and to lose sight of the enormous and over- 
whelming importance of the system to which these incon- 
veniences are incidents, and to forget that by destroying the 
independence and authority of the courts and the popular 
habit of submission to their decisions we would lose infinitely 
more than we would gain. Let me try to state the essential 
thing that we would lose. 

One of the fundamental ideas of our government is that all 
the officers to whom the people, whether of the nation or of the 
state, entrust the powers of government shall be subject 
to certain definite prescribed limitations upon their power. 
These limitations are of two kinds. First, those which relate 
to the distribution of powers. The national government and 
the respective state governments are each to keep within its 
own prescribed field of action. The legislative, executive, 
and judicial officers are to be confined to their own depart- 
ments of government. Within those departments particular 
officers, wherever it is found expedient, have specific lines of 
limitation up>on their power. If an officer undertakes to do 
something which is not within the prescribed 'limits of his 
authority his action is void and without legal effect. No 
matter how able and patriotic a president or a governor 
may be, no matter how wise a congress or a legislature may 
be, no matter how much they may deem it to be for the 
public good that they should invade the field of action of 
another department, they are denied the right to do it, not 
because it might not be a very good thing in the particular 
case, but because the prevention of unlimited power is of 
such vast importance to hberty that no particular case can 
possibly be important enough to justify abandoning the 



454 ADMINISTRATION OF JUSTICE 

maintenance and the observance of the general rule of pre- 
scribed Kmitations. The door opened for the well-meaning 
and far-seeing lover of country to exercise power without 
regard to the limitations set upon it is also a door opened for 
the self-seeking and ambitious to disregard the same limita- 
tions for their own advantage. It is impossible to maintain a 
rule of limitation upon power which is to be observed when it 
seems wise and ignored when it seems unwise. The other 
kind of prescribed limitation is for the protection of the 
individual citizen against the power of government. Our 
fathers had experienced some and observed many invasions 
of individual liberty and individual right of which govern- 
ments had been guilty. They realized that the nature of men 
is not greatly changed by a change in the form of govern- 
ment and that the possession of overwhelming power affords 
a constant temptation to override the rights of the weak. 
Accordingly, both in the nation and in the state, they pre- 
scribed certain general rules which prohibited all oflacers to 
whom they entrusted the powers of government from doing 
certain things, such as inflicting cruel and unusual punish- 
ments, abridging freedom of speech or of the press, prohibit- 
ing the free exercise of religion, putting any person twice in 
jeopardy for the same offense, compelling any one to be a 
witness against himseK in a criminal case, taking private 
property for pubhc use without just compensation, depriving 
any one of life, liberty or property without due process of 
law. It frequently happens that inconvenience results from 
the apphcation of these rules. Criminals escape because they 
cannot be tried twice or cannot be compelled to testify; pubUc 
improvements are hindered because property cannot be taken 
except by due process of law; the liberty of the press and of 
speech often degenerates into license and many poor people 
are misled to their harm by the doctrine of strange and irra- 
tional religious sects. Nevertheless the maintenance of these 



JUDICIAL DECISIONS 455 

rules is the bulwark which protects the weak individual citizens 
in the possession of those rights which constitute liberty ; and 
it is because these rules with all their inconveniences, if main- 
tained at all must be always maintained, that the public 
officer who oversteps them, with however good intentions 
and for whatever benefit to the public, becomes a trespasser 
without authority and without protection of the law. 

A second and equally necessary feature of our system is 
that these limitations, both those which distribute official 
powers and those which declare the great rules of right con- 
duct must be prescribed abstractly and impersonally rather 
than with reference to particular cases or particular exi- 
gencies or particular individuals. The difference is generic, 
essential, world-wide. The very fact of making a constitution 
which is to be binding upon legislatures and executives and 
judges when they come to deal with particular cases exhibits 
the rules prescribed in the Constitution in sharp distinction 
from the determination of official power when particular 
cases arise. It is not possible for any human power to make 
the determination of a legislature or executive at the time of 
action the same thing as an obligatory general rule of conduct 
prescribed beforehand. The difference between a constitu- 
tional convention prescribing constitutional limitations and a 
legislature dealing with particular exigencies is not that one 
represents the people any more truly than the other, or is of 
any higher character than the other, but it is that one deals 
with justice, with right conduct, with the requirements of 
liberty, with a due balance and distribution of the powers of 
government impersonally and in the abstract without refer- 
ence to individuals or the interests or prejudices or incon- 
veniences of particular cases; while the other deals with the 
particular cases to which the general impersonal rule applies. 
So it is that at almost every session of our legislative bodies 
we find attempts made to evade or to appear to evade 



456 ADMINISTRATION OF JUSTICE 

constitutional rules in order to accomplish specific piu^poses, 
when beyond a doubt the very body which attempts the 
evasion would refuse to abandon the rule as a guide to con- 
duct except in the particular case under consideration. 
Indeed if it were not for the fact that legislatures and execu- 
tives would fail to apply the impartial and universal rules of 
OUT constitutions to the particular case with which they deal 
if left free at the time there would be no occasion for constitu- 
tions. The provisions for amending constitutions are so 
framed in general as to provide for deahng with all of the 
subjects with which they treat in the abstract as distinct 
from dealing with instances that arise under them legisla- 
tively in the concrete. So we deal with abstract rules by 
themselves and we deal separately with the particular cases 
in which governmental action is to be governed by those 
rules. We know that human nature is such that the two 
cannot be combined; that a decision upon a rule of abstract 
justice cannot be combined with a decision as to the accom- 
plishment of a particular wish any more than a man can 
render justice when he sits as a judge in his own cause. 

A third feature of our system which is a necessary corollary 
to the other two and essential to them, is the vesting of power 
in the judicial branch to determine when the action of the 
legislative and executive branches or any officer of them over- 
steps the limitations which have been prescribed. Without 
this all our bills of rights and Kmitations upon official power 
would be idle forms of words. If the lawmaking body of the 
moment, whether it be a representative legislature or a major- 
ity at the polls, is to determine at the time of action either 
what shaU be the rules to control its conduct or the question 
whether its conduct conforms to the rules already prescribed, 
that conduct is controlled only by the will of the lawmaking 
body at the moment of action, and our whole system of pre- 
scribed limitations upon power disappears. The necessary 



JUDICIAL DECISIONS 457 

result is that the barriers we have set up from the beginning 
of the government against official usurpation of power and 
against official invasion of the liberty and rights of the individ- 
ual, are broken down, and the power of the majority accord- 
ing to the will of the moment is supreme and uncontrolled. 
Chief Justice Marshall says, in the leading case of Marbury 
V. Madison: ^ 

To what purpose are powers limited, and to what purpose is that 
limitation committed to writing, if these limits may, at any time, be 
passed by those intended to be restrained ? The distinction between a 
government with limited and unlimited powers is abolished, if those 
limits do not confine the persons on whom they are imposed, and if acts 
prohibited and acts allowed, are of equal obligation. It is a proposition 
too plain to be contested, that the constitution controls any legislative 
act repugnant to it; or that the legislature may alter the constitution by 
an ordinary act. 

Between these alternatives, there is no middle ground. The consti- 
tution is either a superior, paramount law, unchangeable by ordinary 
means, or it is on a level with ordinary legislative acts, and, like other acts, 
is alterable when the legislature shall please to alter it. If the former part 
of the alternative be true, then a legislative act, contrary to the constitution, 
is not law: if the latter part be true, then written constitutions are absurd 
attempts, on the part of the people, to limit a p)ower, in its own nature 
illimitable." 

We must choose between having prescribed rules of right 
conduct, binding in every case so long as they exist, even 
though there may be occasional inconvenience through their 
restraint upon our freedom of action, and having no rules at 
all to prevent us from doing in every case whatever we wish 
to do at the time. We cannot maintain one system in part 
and the other system in part. The guK between the two 
systems is not narrowed, but greatly widened by the proposal 
to dispense with the action of a representative legislature and 
to substitute direct popular action at the polls. A sovereign 

1 1 Cranch, pp. 137, 176-177. 

2 For a previous reference to this opinion of Chief Justice Marshall and a longer 
quotation, see page 108 f . 



458 ADMINISTRATION OF JUSTICE 

people which declares that all men have certain inalienable 
rights, and imposes upon itself the great impersonal rules of 
conduct deemed necessary for the preservation of those 
rights, and at the same time declares that it will disregard 
those rules whenever, in any particular case, it is the wish of a 
majority of its voters to do so, establishes as complete a con- 
tradiction to the fundamental principles of our Government 
as it is possible to conceive. It abandons absolutely the con- 
ception of a justice which is above majorities, of a right in the 
weak which the strong are bound to respect. It denies the 
vital truth taught by religion and realized in the hard experi- 
ence of mankind, and which has inspired every constitution 
America has produced and every great declaration for human 
freedom since Magna Charta — the truth that human nature 
needs to distrust its own impulses and passions and to estab- 
hsh for its own control the restraining and guiding influence 
of declared principles of action. 

Upon the choice between these two systems of govermnent, 
whether it be between the independent power of the judiciary 
and the unrestrained will of a representative legislature, or 
between the independent power of the judiciary and the 
unrestrained will of a popular majority, we may not ignore 
the warning of Hamilton, in The Federalist. 

"For I agree," he says, quoting Montesquieu, "that 
' there is no liberty, if the power of judging be not separated 
from the legislative and executive powers.' ^ . . . The com- 
plete independence of the courts of justice is pecuharly 
essential in a limited Constitution. . . . Limitations of this 
kind can be preserved in practice no other way than through 
the medium of the courts of justice; whose duty it must be 
to declare all acts contrary to the manifest tenor of the 
Constitution void." ^ 

^ Montesquieu's Sjnrit of ike Laws, vol. i, p. 186. 

* The Federalist, No. 78. 



JUDICIAL DECISIONS 459 

If the people of our country yield to the impatience which 
would destroy the system that alone makes effective these 
great impersonal rules and preserves our constitutional gov- 
ernment, rather than endure the temporary inconvenience 
of pursuing regulated methods of changing the law, we shall 
not be reforming, we shall not be making progress, but we 
shall be exhibiting the weakness which thoughtful friends of 
free government the world over have always feared the most 
— the lack of that self-control which enables great bodies of 
men to abide the slow processes of orderly government rather 
than to break down the barriers of order when they obstruct 
the impulse of the moment. 

What is the remedy for this condition ? How can the 
process be arrested ? 

I think the courts can do something. They may sometimes 
perhaps keep more fully in mind what Chief Justice Marshall 
said in the case of Fletcher v. Peck: ^ 

The question, whether a law be void for its repugnancy to the Consti- 
tution, is, at all times, a question of much delicacy, which ought seldom, if 
ever, to be decided in the aflSrmative, in a doubtful case. The Court, 
when impelled by duty to render such a judgment, would be unworthy 
of its station, could it be immindful of the solenm obligations which that 
station imjjoses. But it is not on sUght implication and vague conjecture, 
that the legislature is to be pronounced to have transcended its powers, 
and its acts to be considered as void. The opposition between the Consti- 
tution and the law should be such that the judge feels a clear and strong 
conviction of their incompatibility with each other. 

Sometimes perhaps they may take a little more pains, 
when they have to decide against the constitutionality of a 
law, to make the grounds of their decision intelhgible not 
merely to technical lawyers, but to laymen. Although the 
decision in a case technically affects only the parties, when 
the case becomes the occasion for a decision affecting great 
numbers of people, it is as much a judicial duty to see that 

1 6 Cranch. 87, 128. 



460 ADMINISTRATION OF JUSTICE 

the people do not misunderstand the ground and scope of the 
decision as it is to see that the parties and their counsel are 
informed. 

It may be also that some judges who have been long with- 
drawn by their duties from active participation in current 
affairs could profitably study with more interest those 
changes of social conditions which make necessary new appli- 
cations of the poHce power of the state — that vast and 
adaptable power preserved in all constitutions, the basis of 
which rests in common sense and the relations of which to 
the specific guarantee of the constitution must always be 
subject to adjustment according to the varying needs of the 
time. The Supreme Court says of this power in the case of 
Barbier v. Connolly.^ 

The Fourteenth Amendment, in declaring that no state " shall deprive 
any person of life, liberty, or property without due process of law, nor 
deny to any person within its jurisdiction the equal protection of the laws," 
imdoubtedly intended not only that there should be no arbitrary depriva- 
tion of life or liberty, or arbitrary spoliation of property, but that equal 
protection and security should be given to aU imder like circumstances in 
the enjoyment of their personal and civil rights; that all persons should 
be equally entitled to pursue their happiness and acquire and enjoy 
property; that they should have like access to the courts of the country 
for the protection of their persons and property, the prevention and 
redress of wrongs, and the enforcement of contracts; that no impediment 
should be interposed to the pursuits of any one except as applied to the 
same pursuits by others under like circumstances; that no greater burdens 
should be laid upon one than are laid upon others in the same calling and 
condition, and that in the administration of criminal justice no different 
or higher punishment should be imp>osed upon one than such as is pre- 
scribed to aU for like offenses. But neither the amendment — broad and 
comprehensive as it is — nor any other amendment, was designed to 
interfere with the power of the state, sometimes termed its police power, 
to prescribe regulations to promote the health, p>eace, morals, education, 
and good order of the people, and to legislate so as to increase the industries 
of the state, develop its resources, and add to its wealth and prosperity. 

The bar can do much. A lawyer has special opportimity 
to acquire a just sense of the importance of preserving the 

1 113. u. S. 27, 31. 



JUDICIAL DECISIONS 461 

constitutional system of our country and of maintaining the 
undiminished power of a really independent judiciary. He 
can explain this and insist upon it among his clients and his 
fellow-citizens in private and in public and can secure for it 
from citizens in general that attention and thoughtful con- 
sideration which alone is necessary to secure just results 
among an intelligent people. 

One other thing we can all do, and that is, to encourage 
and exhibit the true spirit of temperate and patriotic con- 
sideration which is the primary requisite to success in work- 
ing out the problems of self-government. Some of the recent 
discussions of judicial conduct have been dignified and tem- 
perate expressions of reasoned opinion which we must respect, 
although we may not agree with it, such, for instance, as the 
recent article by Mr. Roosevelt in The Outlook} Some other 
expressions, however, have been rather exhibitions of violent 
temper and appeals to prejudice, imputations of sinister 
motive, and incitements to hatred. Such expressions we may 
not hesitate to condemn, and I am glad to beheve that the 
condemnation will find a response among the great body of 
American people. It is not so that free government makes 
true progress. Along that pathway lies intolerance and 
hatred, strife and civil war, and revolution, the survival of 
the strong and the oppression of the weak. There is no rea- 
son to believe that those who seek to accomplish their will 
concerning the political and social questions of our day are 
any more sincere in their convictions than have been those 
who in other times and in other lands have stained the earth 
with the blood of countless thousands in the conflict between 
religions and sects, and races and classes of men, or that they 
are any more sincere than those who in times now happily 
passing away have, by appeal to arms, kept the constitutional 

^ " Arizona and the Recall of the Judiciary", by Theodore Roosevelt, The 
Outlook, June 24, 1911. 



462 ADMINISTRATION OF JUSTICE 

republics of Central and South America in a state of almost 
perpetual revolution. The appeal to prejudice and passion 
and hatred finds its natural sequence in appeals to force and 
in destruction of order. True love of country is not mere 
blind partisanship. It is regard for the people of one's country 
and all of them; it is a feeling of fellowship and brotherhood 
for all of them; it is a desire for the prosperity and happi- 
ness of all of them; it is kindly and considerate judgment 
towards all of them. The first duty of popular self-govern- 
ment is individual self-control. The essential condition of 
true progress is that it shall be based upon grounds of reason, 
and not of prejudice. Lincoln's noble sentiment of charity 
for all and malice towards none was not a specific for the Civil 
War, but is a Hving principle of action. These are truisms, 
but if at any time they should be forgotten (and they seem 
to be sometimes), we should remember that they are also 
essentials; and we should recall them and insist upon them 
and preach them, for they are part of the gospel of human 
freedom. 



THE INDEPENDENT BAR 

ADDRESS AT THE DINNER OF THE NEW YORK STATE BAR 
ASSOCIATION. NEW YORK, JANUARY 20, 1912 

IN behalf of that great organization which we love to call 
the bar of our imperial state, represented by the Associa- 
tion of the bar of the state, I welcome the President of the 
United States. I welcome the Ambassador who represents 
our ancient ally, the sister republic of France. I welcome 
the distinguished Justice of the Court of the King's Bench of 
the nation which lies along our northern border. I welcome 
the distinguished representative of the bar of Canada. I 
welcome the Secretary of War of the United States. I wel- 
come the Federal and State Judges. All of whom have come 
to honor us by their presence and to testify by their presence 
to their consciousness that there lives in the bar, in its inde- 
pendence, its dignity and its faithful performance of its high 
duty, an influence for liberty, and justice and for civilization 
that is worthy of their homage and their respect. 

My friends of the bar, we have many shortcomings and no 
one knows them better than we. We do sometimes in the 
ardor of our advocacy for our clients tangle justice in the net 
of form; but that is the defect of a \artue, and the virtue is 
that noblest and most indispensable of virtues, the virtue 
of loyalty; loyalty to the cause we represent, to the client 
who entrusts his interests to our charge. 

I think that we are upon the threshold of a period in which 
deeper and more fundamental questions must be considered 
by the profession of the law than we have ever been accus- 
tomed to. Many of the principles which we have thought to 
be postulates, or axioms, are questioned. We must re-orient 
ourselves and by thoughtful consideration, by attesting the 

463 



464 ADMINISTRATION OF JUSTICE 

purity of motive and the unselfishness of patriotism qualify 
ourselves, not merely for contention as to individual rights 
under established laws, but for the defense and maintenance 
of the fundamental principles of those laws themselves. 

There is one thing which above all others has seemed to me 
to make the advocate of essential value to the preservation of 
liberty and the maintenance of justice, and that is that he 
fears not the face of power. With all our shortcomings, with 
aU the wide variation of character, and the many differing 
degrees of ability and force which are to be found in an asso- 
ciation of lawyers like this, there is one thing which among all 
the lawyers of America we are sure to find, and that is, that 
for the weakest, for the poorest, for the most unnoted and 
uncared-for client, we fear not, not one of us, not the weakest 
of us, to assert rights against all overwhelming power what- 
ever. So long as there exists in a civil community a great 
body of men who have that characteristic, liberty cannot die. 

There is a reason for it, and the reason is that not alone 
with us, but through us the community in which we live, 
throughout all the people who ordain the laws that we seek 
to enforce, whose protection we invoke, whose mandates we 
assert, — throughout all the people there exists a deep, and 
I think an ineradicable sense of the supremacy of justice — 
justice dependent upon no whim or fancy of a ruler, justice 
dependent upon no impulse or passion of a majority, justice 
which is a covenant between all government and the humblest 
citizen who is governed. And when we speak in the name 
of justice as against whatever overwhelming tide of pubHc 
opinion of the moment, we are invoking a power that Hes 
beneath, that outlasts, that is superior in its control and more 
sacred in the allegiance that it commands, than any poHtical, 
or social, or personal desire among our people. 

In our government, among every free self-governing 
people, the declarations of the principles of justice, the rules 



THE INDEPENDENT BAR 465 

of right conduct declared, whether in written constitutions or 
in customs or judicial decisions, are a guarantee from the 
majority to the minority, a guarantee of the mighty power of 
all the people, but one to that one. We have believed, we 
have always beUeved, our fathers believed, our government 
is founded upon the belief, that for the weakest and the 
humblest, be he a criminal condemned to death, be he with- 
out friends, money or power, or influence, whoever speaks 
in the name of that justice which is superior to human 
desires and impulses and wishes, has behind him the power 
of the deliberate and mature judgment of the people in their 
sober moments, when the voice of the people is the voice 
of God. 

We are told that the great principles of justice which we 
have declared without regard to persons or to interests or to 
time, are now to be subordinate to the will of a majority; 
and if that be so, the independence and the dignity of the bar 
are gone. If that be so, the Hberty of our people will soon be 
gone. For it is as true now as it was when at the hearthstone 
of om* homes we learned it, that men in the moment of their 
impulse, of their desires, of their passions, are weak and prone 
to err; and the guidance of principles alone can keep men 
in the straight and narrow path of justice. 

My friends, you all have cases in which you are interested, 
clients for whom you are anxious to do your best, but you 
have here now the greatest cause that any American lawyer 
ever entered upon; and all the clients you ever had or ever 
will have, and all the interests for which you ever argued are 
involved in your maintaining, through the learning, the expe- 
rience, the special opportunity and necessity for thoughtful 
consideration that pertain to the bar, the great cause before 
the American people of a justice that is above majorities and 
rests on the basis, not of any popular vote, but of the eternal 
laws of God. 



466 ADMINISTRATION OF JUSTICE 

It is because I feel deeply the necessities of the situation 
that now confronts the bar, that this meeting of the New York 
State Bar Association seems to me to have a special signifi- 
cance, and it is because I beheve you will do your duty as 
guardians of the law, as advocates not of chents but of the 
law, that I hail you all as members and congratulate you 
upon the great success of this thirty-fifth annual meeting. 
It is because you are the advocates of this great and funda- 
mental principle that it is worth the while for these gentlemen 
to come from the posts of their great offices to meet with you 
tonight. 



REFORMS IN JUDICIAL PROCEDURE 

ADDRESS BEFORE THE JUDICIARY COMMITTEE OF THE 
HOUSE OF REPRESENTATIVES, FEBRUARY 27, 1914 

The Judiciary Committee of the House of Representatives, Sixty-third Congress, 
Second Session, Honorable Henry D. Clayton of Alabama, chairman, met on Feb- 
ruary 27, 1914, pursuant to a request of the American Bar Association, for a hearing 
on certain bills, particularly H. R. 133, " To authorize the Supreme Court to 
prescribe forms and rules and generally to regulate pleading, procedure, and practice 
on the common-law side of the Federal Courts"; and H.R. 4545, "To amend an act 
entitled * An act to codify, revise, and amend the laws relating to the judiciary ', 
approved March third, 1911." The second of these bills, more fortunate than the 
first, passed Congress and was approved December 25, 1914. See foot-note, page 474. 

Among the members of the American Bar Association in advocacy of the passage 
of these bills, were Honorable William H. Taft, the president of the association. 
Honorable Alton B. Parker, of New York, and Senator Elihu Root. Mr. Root 
addressed the Committee as follows: 

I AM very glad to join my brethren of the American Bar 
Association in saying a word on this subject, although I 
had not expected to take it up at this stage. 

There are three bills on the same subject-matter as the bill 
which you have been discussing now before the Senate Com- 
mittee on the Judiciary. They have been referred to a sub- 
committee, which is about to take them up and probably 
give hearings upon them. Those bills are one granting to 
the courts the power to make rules on the common-law side, 
one permitting a case brought on the wrong side to be trans- 
ferred over to the other without going back and beginning 
over again, and one preventing the reversal of decisions 
except for matters going to the merits. 

Let me say, as I am here, something about the practi- 
cal aspect of this kind of legislation. Bills intended to cure 
the evils spoken of have been before both Houses of Congress 
for a great many years and there has been a very gradual 

467 



468 ADMINISTRATION OF JUSTICE 

advance in sentiment regarding them. At first, I can recall 
the American Bar Association Committee coming before the 
Senate Judiciary Committee and being unable to get any 
bills of the character reported. Then, after a few years, the 
committee came to report them. I think I have reported 
bills on all of these subjects from the Senate Judiciary Com- 
mittee to the Senate several times and I think the same 
course has been followed in the House. Then these bills came 
to the stage of passing one House and dying in the other. 
Judge Clayton has just mentioned a bill which was passed in 
the House and passed with amendments in the Senate, but 
which failed to become law because of the conditions late in 
the session. There have been a number of bills aimed at 
these evils that have gone through one House or the other. 
It is quite evident that there is a general feeling that there 
are defects in our system of practice which stand in the way 
of the doing of justice and which ought to be cured. What 
we need is to have united action and bring the subject up out 
of the level of private bills onto the level of matters of pubKc 
importance that require the united action of the committees 
in both Houses — the united and cooperative action of the 
committees of both Houses. 

I am not going into the details of these bills. They differ 
slightly in form before this committee and before the Senate 
committee, but that can be regulated by conference either 
before or after they have passed; but I want to say that all 
point out the same evil throughout this country in greater 
or less degree. 

We have come to the building up of systems of practice in 
which justice is tangled in the net of form, in which a plain, 
honest man coming into court to assert his rights or to ask 
redress for a wrong finds himself confronted by statute-made 
obstacles to getting a decision on his demand. My own 
state of New York is the worst sinner in that respect in the 



REFORMS IN JUDICIAL PROCEDURE 469 

country, I believe, although it was very nearly seventy years 
ago that Mr. David Dudley Field started the reform pro- 
cedure which spread over the greater part of the country and 
which was followed by Great Britain in 1873. But just about 
the time that the country at large had adopted the reformed 
and simplified procedure and Great Britain, from which we 
derive our system of law, had followed, we began to take a 
back track and to build up a complication of procedure until 
now legislatures have put into practice specific provisions for 
this thing and that, and that, and that, giving a litigant a 
right to an examination here, giving him a right to inter- 
locutory rehef there; so that a man who comes into court 
saying he has been wronged and asking a judgment, has to 
try twenty lawsuits about statutory rights before he can get 
to a judgment on his simple demand . When we make a statu- 
tory right the judges have got to observe it just as much as 
they have the original right founded on common justice. If 
they ignore it, there is reversal; and so the man who has but 
little means to employ lawyers, the man who has but little 
time to take from earning his livelihood, becomes discouraged 
and sometimes is ruined; and the men who have abundant 
means to employ lawyers can secure immunity against 
being brought to justice upon the demands of poorer and 
humbler litigants. A race of acute, adroit code lawyers has 
grown up. You will find men in any of the great states where 
this system prevails, where the legislature has been interfering 
with the practice, who will undertake for reasonable compen- 
sation to delay any case indefinitely; and as a rule they can 
do it. The reason is that our legislatures have built up a 
great system of technical procedure creating statutory rights 
which prevent the courts from doing justice. 

Mr. McCoy. Is it not true that a lawyer who has encoun- 
tered something in his own practice is likely to go up to the 
legislature and get an amendment to the code ? 



470 ADMINISTRATION OF JUSTICE 

Mr. Root. Precisely. And the prohibitions which are put 
in our constitutions against special legislation have contrib- 
uted to that. Somebody sees what seems to him an evil in 
his own practice, or he is disgruntled; something has been 
done that he does not Kke, and he becomes a member of the 
legislature, and he gets a change in the code of procedm-e. 
That may be all very well for him, but it may be very bad, 
indeed, for ten thousand other people; and our system of 
practice has been built up in that way on special instances to 
answer the demands of the lawyer who thinks about his own 
case instead of considering the general interests of the pubhc. 

Mr. Thomas. Senator, how long after filing an equity suit 
in New York can you get a trial ? 

Mr. Root. It does not take very long to get a trial of an 
equity case there. Two months, Judge Parker says. The 
great trouble is not so much getting to the trial; it is that we 
have so many technical provisions that you have to go back 
and have another trial. 

I was about to say that our judges want to do justice. 
Here and there there may be a judge who does not want to, 
but it is a very rare exception. My observation is that 
three times out of four they are prevented by the techni- 
cal rules of practice from doing the justice they desire 
to do. 

Mr. McCoy. May I make another suggestion, Senator ? 

Mr. Root. Yes, sir. 

Mr. McCoy. In answer to Mr. Thomas's suggestion, I 
would say that you can reach a case in New York City on the 
equity special term in two months, provided all these 
technicalities have not been used against you. 

IVIr. Root. Yes, sir; after the case gets on the calendar 
and if there are no proceedings to prevent. 

Mr. THoaiAS. Senator, please tell us what you think of the 
constitutionality of this bill. 



REFORMS IN JUDICIAL PROCEDURE 471 

Mr. Root. You mean the bill authorizing the Supreme 
Court to make rules ? 

Mr. Thomas. Yes, sir; this bill we are discussing now. 

Mr. Root. I have never supposed there was any serious 
question as to its constitutionality. Of course, this would 
not confer upon the Supreme Court the power to abolish 
jury trials, and it would not confer upon them the power 
to violate any provisions of the Constitution; but, really, 
the effect of this bill is — 

Mr. Volstead (interposing). Would it confer upon the 
judges the right to modify any existing statute ? That is, 
can we delegate to the courts the power to change an existing 
statute ? 

Mr. Root. No; we cannot. But it is this bill which 
changes the existing statute. We do not authorize the courts 
to do so. What we have now is a statute which requires the 
courts to conform to the practice in the separate states. This 
bill is a substitute for the requirement of conformity to the 
practice of the separate states. It modifies that requirement 
by authorizing the courts to make the rules of practice. To 
that extent this law will modify the existing statute. We do 
not authorize the courts to change the existing statute. 

Mr. Thomas. Here is the matter that I want your opinion 
upon, Senator. Section 8 of the Constitution of the United 
States enumerates the various powers of Congress, and, 
among others, subsection 9, " To constitute tribunals inferior 
to the Supreme Court," and subsection 18 of that section 
reads as follows: 

To make all laws which shall be necessary and proper for carrying into 
execution the foregoing powers, and all other powers vested by this 
Constitution in the Government of the United States, or in any depart- 
ment or oflBcer thereof. 

I would like your opinion about that. 



472 ADMINISTRATION OF JUSTICE 

Mr. Root. My opinion is that we are executing that pro- 
vision of the Constitution in this statute by relieving the 
courts from the requirement which we have aheady imposed 
upon them, to conform the practice in common-law cases to 
the practice of the several states. 

This statute which we have already made constrains the 
courts; and this biU, if passed, will be a substitute for the 
statute, or will modify the statute, so that by law the courts 
may make rules to govern the procedure in common-law 
cases as well as in equity cases. 

Mr. Thomas. You know that under the Constitution the 
Congress has the right to declare war. Do you think they 
could delegate that right to the Supreme Court of the United 
States ? 

Mr. Root. No. 

Mr. Thomas. Why have we not the power to delegate this 
very right ? 

Mr. Root. The way in which Congress does declare war 
is to authorize the President to use the armed forces of the 
United States to accomplish a particular purpose, and this is 
exactly analogous to that. 

We, by law, provide that the Supreme Court of the United 
States shall make the rules in relation to the practice. The 
whole progress and development of our Government is neces- 
sarily toward a greater measure of delegation of authority. 
As our Government becomes more vast and complicated and 
the problems more difficult to understand, and as more and 
more duties are imposed uf>on Congress, it becomes necessary 
to delegate more and more authority. That is the inevitable 
result of a higher and wider organization. 

We can, ourselves, no longer consider and pass upon mat- 
ters of detail. We delegate to the Interstate Commerce 
Commission the power to do things which, in the beginning, 
the legislators and Congresses did themselves. And they are 



REFORMS IN JUDICIAL PROCEDURE 473 

dealing with a vast transportation problem with the exercise 
of exceedingly wide discretion. 

And we have just delegated to the Federal Reserve Board 
enormous power in regard to the banking interests of the 
country. We are now considering a measure for a trades 
commission, to which, if the bill passes, necessarily will be 
delegated very broad powers. 

It is the inevitable course of the development of govern- 
ment in a growing country that the authority at the head 
must deal more and more with the general subjects, and must 
delegate the particulars more and more to other agencies. 
In accordance with that inevitable course of development 
it will leave this subject of making rules of practice to the 
courts which have to administer them. 

Mr. McCoy. Mr. Root, suppose there is now on the 
statute books a statute which prescribes the forms of prac- 
tice at common law. Would not Congress, by passing a bill 
like this, give the power to the Supreme Court, if it made an 
inconsistent rule, to repeal that section ? Could not this 
affect the existing law without controlling future law ? 

Mr. Root. If I understand your question, I think it is 
qmte competent for us to confer upon the Supreme Court the 
power to make the rule which would, by the operation of this 
statute, take the place of the present rule. 

Mr. Volstead. Would that not be a delegation of power, 
and would not the effect of such a rule be that the Supreme 
Court might repeal ? Can we confer that power ? 

Mr. Root. No; we do not. We change the law ourselves. 
The operation of the statute now pending will be to change 
the law, and it amoimts to this, that the practice on the 
common-law side of the Federal courts shall conform to 
the state practice, except as it is covered by the rules of the 
Federal courts. That becomes the law if we pass this bill. 
We ourselves modify the existing rule by excepting from the 



474 ADMINISTRATION OF JUSTICE 

application of the rule those cases which are covered by 
the rules of the Federal court. If there were no statute 
on the subject, if we never had made the conformity act, the 
court would go on and make its rules. 

The court does not derrv^e its authority to make rules from 
an act of Congress. It is inherent ui the exercise of judicial 
power. You constitute the court, you confer jurisdiction 
upon the court, either by the Constitution or by statute, and 
the court proceeds to exercise the jurisdiction. It must have 
rules; it must exercise jurisdiction in accordance with rules, 
and the court makes the rules. It does not require any 
authority from Congress. 

The trouble about the rules on the common-law side now is 
that we have interposed a statute which prevents the courts 
from making rules which differ from the rules of state prac- 
tice, and the effect of this proposed law would be to modify 
that hidebound, hard and fast statute which we have already 
passed, making it apply only to the cases which the courts 
had not covered. 

]Mr. Chairman, while I am here may I call the attention of 
the committee to another bill which has already passed the 
Senate ? 

The Chairman. We wiU be very glad to hear you on that. 

Mr. Root. I thank you. I refer to the bill authorizing the 
bringing up to the Supreme Court of cases in which there has 
been a decision upon the constitutionahty of an act, although 
the decision was in favor of the claim of Federal right. This 
is an act amending section 237 of the Judicial Code.^ 

^ This bill, approved December 25, 1914, is as follows: 

" Be it enacted by the Senate and House of Representatives of the United States of 
America in Congress assembled. That section two hundred and thirty-seven of 
chapter ten of an Act entitled ' An Act to codify, revise, and amend the laws relat- 
ing to the judiciary,' approved March third, nineteen hundred and eleven, is 
hereby amended by adding thereto the follo'n'ing: 

" ' It shall be competent for the Supreme Court to require, by certiorari or other- 
wise, any such case to be certified to the Supreme Court for its review and deter- 



REFORMS IN JUDICIAL PROCEDURE 475 

As section 237 now stands, when, in a state court, there has 
been a claim of right or immunity under the Constitution or 
laws or treaties of the United States, and the decision is 
against the claim, there can be a writ of error to the Supreme 
Court. 

There have been some cases in which the decisions of the 
courts of last resort in states have been in favor of the claim, 
giving to the provisions of the Federal Constitution an effect 
which many people think the Supreme Court would not give 
to those cases. The notable case in that connection is the 
Ives case in New York, regarding the workmen's compensa- 
tion act.^ There the Court of Appeals of New York held that 
the statute which was before them was in violation, both of 
the New York state constitution and the Fourteenth Amend- 
ment of the Federal Constitution. Now, there are many 
j>eople who think that the Supreme Court of the United 
States would not have held that that was in violation of the 
Fourteenth Amendment of the Federal Constitution. The 
people of New York have amended their constitution so as 
to obviate the objection made regarding that particular case,^ 

mination, with the same power and authority in the case as if it had been carried by 
appeal or writ of error to the Supreme Court, although the decision in such case may 
have been in favor of the validity of the treaty or statute or authority exercised 
under the United States or may have been against the validity of the State statute 
or authority claimed to be repugnant to the Constitution, treaties, or laws of the 
United States, or in favor of the title, right, privilege, or immunity claimed under 
the Constitution, treaty, statute, commission, or authority of the United States.' " 
(U. S. Stat.L., vol. 38, pt. 1, 63d Cong., 3d sess., p. 790.) 

1 Ives r. South Buffalo Ry. Co., 201 Court of Appeals Reports, 271; 1911. 

2 This amendment to the constitution of New York, adopted in 1913, reads as 
follows: 

§ 19. Nothing contained in this constitution shall be construed to limit the 
power of the legislatiu^ to enact laws for the protection of the lives, health, or 
safety of employees; or for the payment, either by employers, or by employers 
and employees or otherwise, either directly or through a state or other system 
of insurance or otherwise, of compensation for injiu-ies to employees or for death of 
employees resulting from such injuries without regard to fault as a cause thereof, 
except where the injury is occasioned by the willful intention of the injured employee 
to bring about the injxu^ or death of himself or of another, or where the injury 



476 ADMINISTRATION OF JUSTICE 

but there was no way in which the judgment of the Supreme 
Court could be obtained on that question, and the people of 
the state, many of them, have felt that they were resting 
under a decision giving a more drastic effect to the Federal 
Constitution than the Supreme Court of the United States, 
the guardian of that Constitution, itself would have given, 
and there has been no way to meet that. 

There were, I think, six bills introduced in the Senate, all 
of which went to the Judiciary Committee, and that com- 
mittee reported a substitute, which has passed and which is 
now before your committee. 

The bills undertook, most of them, to give an unlimited 
right to appeal or to take a writ of error in such a case. We 
modified that by substituting for that unlimited right the 
jurisdiction in the Supreme Court of the United States to 
bring up a case by a writ of certiorari or otherwise, using the 
language in which the authority to take up cases from the 
Circuit Court of Appeals by certiorari was given. 

The idea of that modification was that the unlimited right 
would load down the calendar of the Supreme Court of the 
United States with a vast multitude of cases in which an 
appeal was taken for piuposes of delay, and that in every 
case of pubHc importance and concern involving a constitu- 
tional question the Supreme Court would exercise its 
jurisdiction. 

results solely from the intoxication of the injured employee while on duty; or for 
the adjustment, determination and settlement, with or without trial by jury, of 
issues which may arise imder such legislation; or to provide that the right of such 
compensation, and the remedy therefor shall be exclusive of all other rights and 
remedies for injuries to employees or for death resulting from such injiuies; or to 
provide that the amount of such compensation for death shall not exceed a fixed or 
determinable sum; provided that all moneys paid by an employer to his employees 
or their legal representatives, by reason of the enactment of any of the laws herein 
authorized, shall be held to be a proper charge in the cost of operating the business 
of the employer. (Amendment of 1913 to the Constitution of New York, Article I, 
Section 19.) 



REFORMS IN JUDICIAL PROCEDURE 477 

There is very great public interest in the subject, and it is, 
I think, a matter which is of importance, not with reference 
to any private interest at all, but with reference to having 
the law made fixed and certain, and I invite the attention 
of the committee to that bill. 

The Chairman. The bill you refer to, Senator, is Senate 
bill No. 94 ? 

Mr. Root. I think it is. 

The Chairman. That is an act to amend an act entitled 
" An act to codify, revise, and amend the law relating to the 
judiciary," approved March 3, 1911, which appears to have 
passed the Senate January 21, 1914. 

Mr. Root. Yes; that is it. It adds a clause to section 237 
of the judicial code. If that is passed, the effect would be 
that when a Federal question is raised in a state court, if the 
decision is against the claim of right under the Constitution 
or laws of the United States, there is an absolute right to take 
a writ of error, while if the claim is in favor of the right, then 
the Supreme Court has, nevertheless, jurisdiction to bring 
up the matter. 

I thank you very much, Mr. Chairman, for giving me the 
privilege of expressing my views on this subject. 



THE LAYMAN'S CRITICISM OF THE 
LAWYER 

ADDRESS BEFORE THE AMERICAN BAR ASSOCIATION, AT 

THE ANNUAL MEETING IN WASHINGTON 

OCTOBER 20, 1914 

THERE is food for thought in the colloquy on Black- 
heath: 

Dick the Butcher: The first thing we do, let's kill all the lawyers. 

Jack Cade. Nay, that I mean to do. Is not this a lamentable thing, 
that of the skin of an innocent lamb should be made parchment ? that 
parchment, being scribbled o'er, should undo a man ? ^ 

To these simple rustics, who had real grievances, the 
lawyer and his proceedings seemed a barrier in the way 
to that happy day when there should be in England seven 
half -penny loaves sold for a penny and the three-hooped pot 
should have ten hoops. That plain unlettered men should 
have this feeling in England, when the justice to be adminis- 
tered was the king's justice and the law to be enforced was 
the king's law, may not have made so much difference; but 
the existence of such a feeling in America, where the justice 
and the law are estabhshed, maintained, and enforced only 
by the authority of the very people among whom the feeling 
is found, is of very great importance. 

Doubtless such a feeHng does exist. We lawyers are quite 
apt to feel about our law and procedure very much as Lord 
Coke did when he declared the common law to be the per- 
fection of reason. But if we were to poll the great public 
outside of the profession I fear that we should find an 
uncomfortable number who, in a mild way, agree with Dick 
the Butcher. We hear many casual complaints made by 
intelligent persons, based sometimes upon experience and 

1 Henry VI, Part II, Act IV. Scene 2. 
479 



480 ADMINISTRATION OF JUSTICE 

sometimes upon observation. They say the law is slow and 
dilatory; that it takes forever to reach a conclusion; that 
redress of wrong is often attained, if at all, too late to be of 
any use; that when criminals are jfinally brought to justice 
the punishment is too far removed in time from the crime to 
have just punitive effect. They say the law is enormously 
expensive; that whether a suitor succeeds or is defeated he is 
likely to be ruined either way by the multiplication of comisel 
fees and costs and expenses and loss of time and interference 
with business; that the client has no means of measuring or 
weighing or estimating proper compensation for the services 
rendered to him, so that fees are vague and indeterminate 
and the man of moderate means has no way of counting the 
cost before he goes into htigation; that the law is so arranged 
as to require, even in simple matters, an enormous and dis- 
proportionate amount of labor which has to be paid for; 
that everybody's lawyers do a multitude of things for which 
there seems to be no occasion and for which the client has to 
pay. They say the law is doubtful and uncertain; that with 
all the thousands of statutes professing to make it clear and 
all the tens of thousands of decisions by hundreds of courts 
declaring it and applying it, nobody seems to know what it is; 
that its administration is a lottery and depends upon the last 
guess; that the chances of injustice succeeding and of the 
criminal escaping are so great that judgment has httle terror 
for the wrongdoer; that it has become so voluminous and 
complicated as to be beyond the comprehension of plain men, 
and no one knows how to conduct his affairs in such a way as 
to be sure not to violate the law or to protect himself under it. 
The remark, " This may be law but it is not justice," some- 
times heard, indicates a sense that the rules of law which pro- 
fess to secure justice in general too often prevent justice in the 
particular case and themselves point out the way in which 
the adroit and unscrupulousmay conform to the law and avoid 



LAYMAN'S CRITICISM OF THE LAWYER 481 

being fair and honest. There is an idea that success in litiga- 
tion depends not so much upon being right as upon being 
able to get the best lawyer, so that the ordinary honest man 
of moderate means has little chance against a very rich 
man or corporation, who can be indifferent to expense, or 
against the rogue, who can secure the most subtle and adroit 
attorneys and counsel. There is a very general feeling on the 
part of many who think they have a grievance to be redressed 
or an unjust charge to refute that if they could only tell their 
story immediately to somebody who was impartial and just 
they would get satisfaction; but that the courts and lawyers, 
for some reason or other, will not permit them to do this and 
insist upon involving them in long, expensive and ruinous 
proceedings. 

For all these things lawyers are blamed, and this is very 
natural because at the bar, on the bench, in state legislatures 
and in Congress, and as experts influencing the opinions of 
the communities in which they live, lawyers have the greatest 
opportunity and consequent responsibility to prevent abuses 
and improve the administration of the law. 

Not all these things are true. Some of them have a basis 
of truth but are overdrawn. Some of them are to a degree 
merely a statement of the conditions which are inherent in 
juridical controversy. The swift, inexpensive, certain, and 
just attainment of a result according to one litigant's ideas is 
quite likely to collide with the equally swift, inexpensive, 
certain, and just process by which another litigant expects to 
reach an entirely different conclusion in the same case; and 
some degree of delay, expense, and uncertainty and of injus- 
tice, according to the views of one litigant or the other 
necessarily ensues. 

As a rule both litigants go into court, each seeing only his 
own side of the case and therefore finding it quite simple; 
each is confident of an easy victory and has the same attitude 



482 ADMINISTRATION OF JUSTICE 

towards the controversy as the people who at the beginning 
of a wai- cry, *' On to Richmond," " On to Paris," " On to 
Berlin," and are surprised when the journey is retarded. The 
natural tendency under such circumstances is to criticise the 
conduct of the war. 

Criticisms regarding the conduct of litigation having such 
an origin probably cover the greater part of the field of com- 
plaint. They do not, however, sink very deep in the public 
mind. There is a strain of practical good sense in the Ameri- 
can layman which leads him to discount very heavily the 
expressions of litigants who have not had their own way, and 
there is abundant evidence that, under all the noisy fault- 
finding, the American people do respect and trust the Ameri- 
can bar. They may well do so, for the bar is worthy of their 
respect and confidence. We may challenge all records past 
and contemporaneous to show in the preservation of order, 
the security of property, the protection of individual liberty, 
and the maintenance of the fundamental ideas of a system of 
jurisprudence, a degree of general efficiency higher than that 
we have attained in the United States through the service of 
the American bench and the American bar. Their standards 
of probity and honor are high. The occasional derelictions, 
which are inevitable among imperfect men, always come as a 
surprise and a shock to the community in which they occur. 
The independence and courage of the American lawyer befit 
the man who passes his life, not in suing for favors but in 
asserting and maintaining rights. He does not cringe before 
power. He does not fear the face of man. He knows no 
superior. The fearless frankness of his utterances in behalf 
of his cHent are so much a matter of course among our fortu- 
nate people that they pass without notice; but if we study 
the annals of those countries in which the bench and bar 
tremble under fear of political power we shall begin to realize 
how much America owes to the independence and courage of 



LAYMAN'S CRITICISM OF THE LAWYER 483 

her bar. Above all else the American lawyer has loyalty — 
loyalty to his client's cause. That cause is his, and to it 
his learning, experience, industry and skill are devoted 
ungrudgingly. Some of our chief faults are but the defects 
of this noble and attractive virtue. 

If we go behind the surface of fault-finding and study the 
conduct of our people, we find a real attitude of respect and 
confidence. For every detractor, we find a thousand men and 
women who trust their lawyers implicitly in their most inti- 
mate and vital affairs with the frankness and confidence of 
personal friendship, and who are justified in their trust. 
Above the men of all other callings it is to the lawyers that 
the American people turn with the burdens and the respon- 
sibilities of political oflBce. It is the members of the bar who 
chiefly are trusted to carry on the most important business 
the people have — their free self-government. 

Nevertheless, I think we must concede that there is room 
for improvement in the administration of the law in this 
country. Abuses exist in widely differing degrees in different 
communities. As a rule they are much worse in the more 
populous and wealthy communities where life and affairs are 
more complicated; but every American community, as it 
moves along in its course of prosperous development, is pass- 
ing into a condition in which the same abuses will naturally 
develop. Every part of the country, moreover, is coming to 
be more intimately interested in the administration of law in 
every other part. We are fast developing one comprehensive 
American judicial system and one American bar. It is worth 
while for all of us, from whatever states, to give serious con- 
sideration to these complaints about the administration of 
justice from whatever quarter they come. We are all so 
much alike that a serious abuse in one jurisdiction is pretty 
sure to indicate tendencies to be guarded against elsewhere. 
So far as complaints are wrong we should make a distinct and 



484 ADMINISTRATION OF JUSTICE 

conscious effort to show the public that they are wrong, and, 
so far as they are well founded, we should fix the responsi- 
bility and try to have the cause removed. In both cases this 
is very important to the profession and to the interests which 
its members guard. It is more important to each one of us 
than any case in which we can be engaged because the inter- 
ests of every client we protect, the welfare of our profession, 
the enterprise and prosperity of the country, depend upon 
public respect for law and a general belief and confidence 
that justice can be obtained through our courts; that life 
and liberty and property are sure of protection. It would be 
very injurious to have established a popular habit of decrying 
and condemning and stigmatizing our administration of jus- 
tice and the agents through whom justice is administered. 
That would tend to weaken the whole system through the 
withdrawal of public confidence. Wherever people are wrong 
in their criticisms, that ought to be shown, and wherever they 
are right the conditions ought to be remedied. 

The profession of the law can fix its attention upon this 
subject only by a conscious effort. Lawyers are essentially 
conservative. They do not take kindly to change. They are 
not naturally reformers. Their time is occupied mainly in 
thinking and arguing about what the law of the particular 
case is; about what the facts of the case are. The most suc- 
cessful lawyers are, as a rule, continually engrossed in their 
own cases and they have little time and little respect for the 
speculative and hypothetical. The lawyers who have author- 
ity as leaders of opinion are men, as a rule, who have 
succeeded in their profession, and men naturally tend to be 
satisfied with the conditions under which they are succeed- 
ing. This is very well illustrated by some of the experience 
of this association. For years the association has been 
endeavoring through the activity of very able and assiduous 
committees to secure some quite simple reforms tending to 



LAYMAN'S CRITICISM OF THE LAWYER 485 

simplify the procedure of the Federal courts. There has not 
been very much success. As time passes a little progress is 
made. The measures which the committees of the associa- 
tion have advocated have got a little farther each year, and 
they will ultimately arrive, but at every stage they have been 
blocked by opposition from lawyers. This has always come 
from lawyers who had succeeded and were content with 
things as they were; who did not want practice and proceed- 
ings changed from that with which they were familiar, and 
who never had acquired the habit of responding to any pub- 
lic opinion of the bar of the United States. If the administra- 
tion of justice in the United States is to improve rather than 
to deteriorate, there must be such a public opinion of the 
bar, and it must create standards of thought and of con- 
duct which have their origin not in the interest of particular 
cases but in the broader considerations of those relations 
which the profession of the law bears to the administration 
of justice as a whole. Not merely the fee and the triumph 
in the particular case, but the honor and dignity and ser- 
vice of the American bar and the American courts must be 
motives of thought and action among the members of our 
profession. 

What can the bar do to improve the administration of jus- 
tice in the United States ? First, we can improve our law- 
making. We make too many laws. According to a count 
made in the Library of Congress, our national and state legis- 
latures passed 62,014 statutes during the five years from 1909 
to 1913 inclusive. During the same five years 65,379 deci- 
sions of the national and state courts of last resort were 
reported in 630 volumes. Of these statutes 2,013 were passed 
by the National Congress, and of these decisions 1,061 were 
rendered by the Supreme Court of the United States. Many 
of these statutes are drawn clumsily, carelessly, igno- 
rantly. Their terms are so vague, uncertain, doubtful, that 



486 ADMINISTRATION OF JUSTICE 

they breed litigation inevitably. They are thrust into the 
body of existing laws without anybody's taking the pains to 
ascertain what the existing laws are, what decisions the courts 
have made in applying and interpreting them, or what the 
resxiltant of forces will be when the old laws and the new are 
brought together. They are made without the true basis for 
general legislation in the customs and needs of the com- 
munity to be affected. Laws affecting the conduct of life and 
affairs of the people ought not to be passed because it hap- 
pens to occur to some one that it would be a good thing to 
make a change. They ought to grow out of a generally 
recognized public need for the change, ascertained not by a 
process of reasoning but by experience. A new law is not 
justified merely because somebody sees an evil or inconveni- 
ence and thinks that he has a way to reform it, or because a 
system works badly and some one thinks another system 
would work better. Laws made in that way bring new incon- 
veniences and new evils and have to be abandoned or con- 
tinually changed. Changes in the substantive law ought to 
be subject to long-continued inquiry and discussion. They 
ought to be tested by the practical knowledge of the people 
who will be most affected by them and are most familiar with 
the subjects to which they relate. Every one familiar with 
legislation who has seen a proposed statute subjected to that 
kind of process knows that it often results either in ascertain- 
ing that the proposed law is inadvisable, or in very great 
changes of its provisions. It frequently happens that when a 
law has been passed in that way, one can look back to the 
original measure, whose authors had been clamoring for 
immediate enactment, and see that as originally framed it 
was all wrong and would have been most impracticable or 
injurious. Yet thousands of laws are passed in the United 
States every year without being submitted to any such test. 
We are coming very much into the habit of this kind of a pri- 



LAYMAN'S CRITICISM OF THE LAWYER 487 

ori legislation, passing laws which somebody has conceived 
or reasoned out because they seem all right theoretically. 
There is a very prevalent idea that the i>eople who would be 
most deeply affected by a law are disqualified as witnesses 
regarding its wisdom, practicability, and effect, because of 
their interest. If they see that a law affecting them is pro- 
posed and undertake to say what they think about it they are 
accused of lobbying and warned off the premises. Yet when 
all the different groups of people who will be affected by par- 
ticular laws are put together they constitute the American 
people, and if laws are to be made without hearing them we 
shall have a body of statutes based upon theory and not upon 
practical knowledge of affairs. All this mass of ill-considered, 
badly-drawn, experimental, first-impression legislation with 
which the country is flooded from year to year causes innum- 
erable litigations which clog the calendars of the courts, 
occupy the time of judges, and delay the disposition of other 
litigation. It creates new questions faster than the courts 
can decide old ones. It causes ignorance and uncertainty 
regarding the law, which is continually changing; and the mul- 
titude of new laws is one of the chief reasons for the multitude 
of reported decisions. 

One of the most learned and able and pure lawyers in all 
the history of the American bar was Charles F. Southmayd,of 
the famous firm of Evarts, Southmayd and Choate. He re- 
tired from practice and took up his residence in Stockbridge, 
Massachusetts, and while living there he illustrated the effect 
which this new turmoil of legislation produced upon an old- 
fashioned lawyer by employing an agent to attend the ses- 
sions of the Massachusetts legislature every winter and to 
report to him immediately upon their passage all new laws 
creating offenses or imposing penalties — " man traps '* he 
used to call them — in order that he might regulate his 
conduct in such a way as to keep out of jail. 



488 ADMINISTRATION OF JUSTICE 

Undoubtedly there is much reason in these later days for 
new legislation. Our social and industrial conditions are 
changing very rapidly. New relations, new rights, new 
obligations, are being created for the regulation of which the 
old laws and customs of the country are inadequate, and 
there must be new law to prevent injustice. Nevertheless 
there is no real need or justification for a large part of the 
laws that are made or for the way in which they are made. 

There is another most unwise kind of legislation which is 
one of the chief causes of uncertainty in our law and of the 
excessive litigation which so burdens the courts. That is the 
modern practice of perverting state constitutions from their 
proper office to establish the framework of government and 
declare the principles upon which it shall be conducted, 
and of expanding so-called constitutions into general statutes 
crowded with particular and detailed provisions, many of 
them new, experimental, and the prop>er subject for treat- 
ment by ordinary legislative bodies. With this kind of pro- 
vision go a multitude of specific limitations upon legislative 
powers. These limitations give rise to a multitude of ques- 
tions as to the constitutionality of legislative acts. They can 
receive effect of com-se only through the judgment of courts 
as to the conformity of legislative action to their require- 
ments. Both of these kinds of constitutional provision 
arise from distrust of legislatures, which goes far beyond any 
criticism of the courts or of the bar; but in this way there is 
created a condition of things in which the courts and the bar 
cannot possibly escape criticism for defects in the administra- 
tion of law which are not of their own making. Such a basis 
for the conduct of popular government ought not to be 
accepted as final. 

Sometime we shall realize that salvation does not come by 
statute; that prompt and effective administration of justice 
must rest upon stability and certainty of the law; that over- 



LAYMAN'S CRITICISM OF THE LAWYER 489 

legislation defeats its own purpose by the uncertainty and 
confusion and ineffectiveness which ensue; and that the 
proper function of the legislator is not to comqaand or compel 
the people whom he serves, but is, on the one hand, to record 
the matured opinions and sense of justice of the community, 
and, on the other, to make these effective by the needful 
adaptation of the machinery of govei?iment. 

Of course all this is not a matter to be dealt with by lawyers 
at the bar. Courts cannot apply the remedy, nor can lawyers 
as officers of the courts. But lawyers probably make up the 
majority of every legislative body in the United States; and 
moreover the opinions of lawyers in their own commimities 
on such a subject as this will have a great effect in forming 
the public opinion which controls legislatures. 

There are certain specific measures by which American 
legislation may be greatly improved. One is, the establish- 
ment of a reference library for the use of each legislative 
body, with a competent library force to furnish promptly to 
the legislators statistics, historical data, and information of 
all kinds pertinent to proposed measures. Another is, the 
establishment of a drafting bureau or employment of expert 
counsel, subject to be called upon by the legislature and its 
committees, to put in proper form measures which are 
desired, so that they will be drawn with reference to previous 
legislation and existing decisions of the courts; so that they 
will not duplicate existing statutes, will not be inconsistent 
with existing statutes, will not ignore the decisions of the 
courts, will not undertake to do anything in one way which 
is already done in another, and will be written in good Eng- 
lish, brief, simple, clear, and free from ambiguity and incon- 
sistency. There is a useless lawsuit in every useless word of 
a statute, and every loose, sloppy phrase plays the part of the 
typhoid carrier. A good many American legislatures have 
already established reference libraries and some have estab- 



490 ADMINISTRATION OF JUSTICE 

lished drafting bureaus to the great advantage of their legis- 
lation. The state of Wisconsin has taken a very creditable 
leadership in that direction. This is the same kind of method 
which is followed in the British House of Commons, where 
there are regular counsel employed by the Government to 
draft measures. It is manifest that a large part of our legis- 
lators must be without the thorough knowledge of the whole 
field of law and the training in clear and accurate expression 
which ought to be employed in the phrasing of every new 
statute. If ever expert assistance was needed, the conditions 
of legislation in the United States at the present time show 
that our legislators need it in their lawmaking. One of the 
reasons why our legislation is so badly done is that this craze 
for making new laws up>on every conceivable subject over- 
burdens our legislative bodies, and they have not the time to 
do their work properly. Laws are not properly considered in 
Congress or hi our state legislatures because everybody is 
always busy about other laws, and, instead of a moderate out- 
put of legislation well-considered and well-done, we have an 
enormous output of ill-considered legislation iU-done. The 
remedy for this cause of the evil is to cultivate public opin- 
ion in favor of moderation and against haste and excess in 
lawmaking. Public commendation of the one and public 
condemnation of the other would soon bring about an 
improvement. 

Another thing the bar can do is to simplify the procedure 
of our courts. There is a very great difference in this respect 
in the states. Taking the country as a whole, judicial pro- 
ceedings tend to become more complicated and technical. In 
some parts of the country, notably in my own state of New 
York, this tendency has already reached a poiat of serious 
abuse. The tendency is one which has existed in every sys- 
tem of jurisprudence from the Egj^tians down. The special 
class to which is committed the guardianship of the law 



LAYMAN'S CRITICISM OF THE LAWYER 491 

always drift away in time from the standards of the plain 
people whom they serve, always become subtle, technical, 
over-refined; and the forms which they originally adopted to 
facilitate the process of getting at substantial justice come 
to be themselves the subject of controversy which obstructs 
the way of justice. 

The administration of law in America had become very 
technical seventy years ago, although the conditions of life 
and business with which the courts and the bar had to deal 
were comparatively simple. The rules which governed the 
pleadings and proceedings of the common law both in civil 
and criminal cases, were founded originally upon reason and 
adapted to the conditions out of which they arose. They 
were designed to protect rights and to facilitate the attain- 
ment of justice, but they had hardened into an iron-boimd 
system which had ceased to fit the rapidly developing and 
changing life of American communities. People who were 
accustomed to simple and direct methods in their business 
grew tired of waiting and paying for lawyers to dispute over 
answers and pleas and rejoinders and rebutters and surre- 
butters, and tired of seeing criminals escape justice because 
the caption of an indictment was defective or a venire was 
informal. From that dissatisfaction grew the Field Code of 
civil procedure in 1848, which was followed by the greater 
part of the American states in what was known as the re- 
formed procedure. The influence of that code made the civil 
practice more simple even in the states which did not adopt 
it but continued with the common-law practice. The code 
was brief, simple, quite general in its terms, and it swept 
away a whole mass of technical details and conformed the 
practice of law to the customs and habits of thinking and 
acting of the American people. That is the true basis for 
procedure. The old common-law procedure was logical in a 
high degree, but man is not a logical am'mal. The Ameri- 



492 ADMINISTRATION OF JUSTICE 

can man especially is intensely practical and direct in his 
methods. American procedure ought to follow as closely as 
possible the methods of thought and action of American 
farmers and business men and workmen. The law is made 
not for lawyers but for their clients, and it ought to be 
administered, so far as possible, along the lines of laymen's 
imderstanding and mental processes. The best practice 
comes the nearest to what happens when two men agree to 
take a neighbor's decision in a dispute, and go to him and 
tell their stories and accept his judgment. Of course all prac- 
tice cannot be as simple as that; but that is the standard 
to which we ought to try to conform rather than the methods 
of an acute, subtle, logical, finely discriminating, highly 
trained mind. It is that sort of thing which merchants seek 
when they get up committees of arbitration to decide their 
controversies without the intervention of lawyers. They are 
trying to get their questions settled in accordance with their 
instincts and habits of thought. That is the way in which all 
the great international arbitrations are conducted. Fortu- 
nately for them, the judicial procedures of the nations differ 
so widely that there cannot be any particular rules of practice 
in an international case. Accordingly each country tells its 
story in print and then both go in and tell the arbitrators 
about it. Many of these cases are exceedingly complicated 
and diflBcult, but they require no complicated and difficult 
procedure. 

During the sixty-odd years which have elapsed since the 
reform of American procedure by codification there has been 
a constant movement towards the same old condition of com- 
plex and technical procedure, caused by legislative inter- 
ference with the details of practice. In many states, year by 
year, well-meaning lawyers have been putting new provisions 
into codes of procedure, expanding, elaborating, refining, 
telling how everything shall be done, how every step shall be 



LAYMAN'S CRITICISM OF THE LAWYER * 493 

taken, how every paper shall be framed, endeavoring to meet 
every difficulty encountered in individual practice by a new 
provision of law. The New York code, as a horrible example, 
has been swelled in this way to more than eight times its 
original dimensions. Most of these enactments have been 
made in entire good faith. Many of them prescribe methods 
appropriate to secure or prevent the doing of particular 
things in the course of litigation, provided they are strictly 
and accurately followed. The general result, however, is 
that in all litigation in these jurisdictions we have a vast mul- 
titude of minute, detailed, technical rules that must be fol- 
lowed; traps to catch the unwary; barbed wire entangle- 
ments; barriers which the subtle and adroit practitioner can 
interpose to hinder the pursuit of justice. Because these rules 
are statutory they create statutory rights. A multitude of 
controversies about these statutory rights intervene between 
the suitor's demand for redress and his final judgment. 
Rights created by statute cannot be ignored by courts. 
Parties must be heard about them. The question upon them 
is, not what accords with substantial justice in the particular 
case, but what the law has said shall be done in such proceed- 
ings. So the time of courts is occupied, delay is incurred, 
expense is increased. While the law is enforced, justice 
waits. The suitor who is right in his case may be wrong in 
his practice. The courts are hindered in doing justice because 
they must follow the statute. There is a premium on shrewd, 
ingenious, shifty attorneys. The possibilities of delay and of 
forcing a compromise to avoid expense and annoyance induce 
litigation by those who wish to escape the faithful perform- 
ance of their contracts. The calendars are crowded with such 
cases. In such a game the poor stand little chance against 
the rich, or the honest against the unscrupulous. The 
process of piling up more statutory rules continues in state 
legislatures. It has invaded Congress, and from many quar- 



494 ADMINISTRATION OF JUSTICE 

ters efforts are coming to impose more and more specific rules 
upon the Federal courts. Such proposals are made by good 
lawyers and they are made in good faith, but they are made 
without due consideration of the fact that each one is a step 
in the course of a vicious policy which ought not to prevail. 
There is no necessity for all this bedevilment of our practice 
by law. A short and simple practice act in each jurisdiction 
— such as some states have abeady — laying down the 
general lines of procedure and leaving the rest to the courts, 
is all that is necessary. The courts wish to do justice, and 
they will if they are permitted to. If rules are necessary the 
courts will make them and then the courts can see to it that 
they do not hinder justice. It is to be observed that the 
great lawyers in great causes concern themselves the least 
about technicalities. The small lawyers in the small cases 
are the worst, and that is just where the clients can least 
afford such methods. 

There was intense opposition to the simplification of prac- 
tice by the Field Code of 1848. Most of the old lawyers were 
violently against it. In my early days the leaders of the bar 
had all grown up under the common law practice before the 
Code, and they despised and condemned the new ideas. 
Time and again I have heard them, in consultation with the 
author, describe the book as " your damned code, Mr. 
Field." But it is not the high priests of a mystery who deter- 
mine whether it shall continue. It is the people who are 
either fooled by it or tired of it. They determined seventy 
years ago that practice should be simpler. And twenty-five 
years later the reform was followed in England by the Judi- 
catiu-e Act of 1873. There is opposition to any improvement 
of om* present system of practice in the direction of making it 
more simple. But the people of the country whose rights are 
being Htigated will sooner or later find expression and guid- 
ance in bringing about again the same kind of reform which 
Mr. Field inaugurated in 1848. 



LAYMAN'S CRITICISM OF THE LAWYER 495 

There is one special field in which I think we can greatly 
reform ourselves. That is, in the application of our rules of 
evidence. I should not like to see broken down the carefully 
framed series of negations by which we seek to exclude from 
the knowledge of judges and jurors all testimony which does 
not conform to our conceptions of proper probative charac- 
ter, leaving the testimony in our courts to take the wide 
range that characterizes trials on the continent of Europe; 
but there is no country in the world in which rules for the 
exclusion of evidence are applied with the rigidity and tech- 
nicality obtaining in the United States. England and her 
colonies which follow the course of the common law have 
similar rules, but they are applied with a breadth and liber- 
ality in favor of getting at the truth not usually found in 
our courts. 

Our trial practice in the admission and exclusion of 
evidence does not agree with the common sense, the experi- 
ence, or the instincts of any intelligent layman in the coun- 
try. And as a consequence, while we are aiming to exclude 
matters which our rules declare to be incompetent or irre- 
levant or immaterial, we are frequently also excluding the 
truth. How common it is to see an unsophisticated witness 
on the stand trying to tell a true story about some event 
with which he is familiar, and continually stopped and bewil- 
dered by objections based upon distinctions which do not 
exist in his mind at all, and finally leaving the stand with a 
feeling that he has been bottled up and not allowed to tell 
the truth. We apply these same rules with the same rigidity 
to women, whose minds work in an entirely different way 
from the mind of any lawyer who ever had anything to do 
with devising or developing the rules of evidence. It is an 
exceedingly difficult thing to tell the truth, the whole truth, 
and nothing but the truth, on the witness stand, as any law- 
yer who has been a witness must realize; and the simplest 
and best way to get that done is to come as near as possible 



496 ADMINISTRATION OF JUSTICE 

to allowing people to tell their stories their own way. When 
that is done the matters which have no proper probative 
effect can be disregarded. So far as my observation goes, 
there are about twenty objections to the admission of evi- 
dence in a trial in an American court to one in an English 
court. The system of law is the same; the rules are the 
same. The difference is simply that we have got into a bad 
habit, and we ought to cure om-selves. It does not help a case 
any on the merits to be so technical about evidence. On the 
contrary, it hurts the case with judges and juries, and it ought 
to do so because there is a fair implication that the lawyer 
who is so very particular about little points is not very 
confident in the merits of his case. 

The rule against reversals except for causes which can be 
shown to have affected the decisions in the court below will 
have a salutary effect m this direction, and it has already had 
such an effect where it has been adopted. But even with such 
a rule our bad habits will continue imless we remind ourselves 
of them and try to break them. 

I think there is a broader defect in our trial of causes in 
this, that we are too apt to play a game instead of trying to 
get down as rapidly as possible to the merits of the case. And 
we play the game for all it is worth. We enjoy the exercise 
of skill and the strategy and tactics of litigation. The law- 
yers on one side or the other of a large part of our litigations 
consider their duty to be to postpone to the latest time prac- 
ticable a possible adverse result. So we make our lawsuits a 
game of chess where they are not a game of chance. Indeed 
it is a most interesting and delightful game, but in the mean- 
time the cKents suffer. Unquestionably it would be best for 
all Htigants taken as a whole and for the public whom we 
serve, if every lawyer should address himself with earnestness 
and sincerity to getting out the true facts of his case and 
getting the law applied to them as speedily and simply as 



LAYMAN'S CRITICISM OF THE LAWYER 497 

possible. If we could all do that we could beat Dick the 
Butcher and Jack Cade on their own heath. Perhaps a 
sound opinion of the bar may bring it about. 

"We must remember that if we are conscious of faults which 
perhaps are trivial among the lawyers who have the public 
spirit to become members of this association, those faults 
are sure to be more serious and injurious in those members 
of the bar who take but little interest in the public aspect of 
their professon; the lawyers who are in the lower grade as to 
attainment and cultivation; who are but little familiar with 
the traditions of the profession, and are having a hard time to 
get on with scanty business; the lawyers whose stock in trade 
is knowledge of the code and skill in the obstructive use of 
its provisions; the lawyers whose clients are found chiefly in 
that great class which seeks to prosper by doing injustice to 
others and uses the technicalities of the law to further that 
end. Among them there is always the danger that the neces- 
sities of the game will urge too far; that they will yield to the 
same influence which leads one man to strike below the belt, 
another to fire before the word, another to slip a card from 
the bottom of the pack. That danger is to be reached not by 
more legislation, but by the public opinion of the bar, open 
discussion of the ethics of the profession, active insistence 
upon standards of conduct. 

We are in a period of universal development. All business, 
all science, all thought, are casting off old shackles and 
impediments and improving their methods, increasing their 
eflBciency, lifting up their standards. It should not be that 
our noble profession is alone to remain stationary and without 
growth along the lines of better service and greater usefulness. 



THE SPIRIT WHICH MAKES A 
NATION LIVE 

ADDRESS AT THE DINNER OF THE AMERICAN BAR 
ASSOCIATION, WASHINGTON. OCTOBER 2«, 1914 

At the banquet following the thirty-seventh annual meeting of the American 
Bar Association, held in the city of Washington, October 20, 21, and 22, 1914, the 
president of the association, the Honorable William H. Taft, former President of 
the United States, acted as toastmaster, and, in introducing the last speaker, he 
said : " It is my great pleasure to ask to respond to the toast which the Chief 
Justice has proposed, the leader of the American bar. If he does not recognize 
himself, I will call him by name — Senator Elihu Root." 

A FEW years ago I dined in one of the most charming and 
hospitable of our American cities and was called to my 
feet to respond to a toast about two o*clock in the morning; 
at three o'clock the banquet ended; and as we started to 
leave, a gentleman who sat next to me said, in a tone which 
indicated that he did not think I was much of a fellow any- 
way, ** Last year when Taft was here we didn't break up until 
four o'clock." We are approaching the same hour now. 

Yet I will say one or two things. One is to the Chief Jus- 
tice: that I am glad he has applied to the old tradition the 
sentiment of Henry V to Catherine, " Nice customs courtesy 
to great kings." And one thing that I wish to say to my 
brethren of the bar: that this great meeting, so rich in 
unusual experiences, so full of instruction and of inspiration, 
will have missed its purpose unless we can go back to our 
homes and carry to the people among whom we live, some 
message that will lift them all a little higher in patriotism 
and give them all a little truer conception of service to our 
country. The message that I hope may be carried is this: 
that they should better appreciate and prize and pride 

4M 



500 ADMINISTRATION OF JUSTICE 

themselves upon the highest and noblest function of American 
democracy. This is not in creating a great material civiliza- 
tion; it is not in building railroads or breaking the prairie 
or clearing the forests; it is not in building schools or hospi- 
tals; it is not in making laws; it is not in administration; 
it is not in simple, right living and the performance of duty 
one to another; but it is in the great function of establishing, 
to rule the lives of the present and the future, a standard for 
the morality and the conscience of the world. It is in declar- 
ing those principles of action, those eternal laws of justice 
and liberty which we embody in our constitutions, and call 
limitations upon official power. That function differs in 
kind, not merely in degree, but in kind, from all other acts of 
government, from all other acts of citizenship; for it must be 
abstract, impersonal, detached from all interests and affec- 
tions and the minor motives that sway the conduct and 
the affections of men; it must be impersonally abstract as the 
laws of God. 

We never have realized the sanctity of the making of the 
Constitution. For all time the world has been disputing 
upon the data of ethics. What is morality ? What are its 
laws ? What is justice ? What is right as between man and 
man ? Are we to find it in the laws of nature ? Is it natural 
justice ? Who shall declare it ? Is it the greatest good for 
the greatest number ? Who shall say what is the greatest 
good ? Millions of men are today fighting and dying over 
hundreds of miles of the fairest land in Europe, because of 
different understandings by people of different nations of 
what are the fundamental rules of morality which should 
control national action. Beyond and behind all the corre- 
spondence, the little things which are referred to, to show 
that this one or that one or the other was responsible for this 
dreadful war, are the fundamental differences of moral view 
as to the rights and the duties of nations. To be right, to set 



THE SPIRIT WHICH MAKES A NATION LIVE 501 

for the world a standard of true liberty and true justice: 
that is the great mission of democracy ! And that we propose 
when we set in our constitutions our conception of what is 
justice and what is liberty, and bind ourselves to conform 
our lives to the rules of conduct which that conception dic- 
tates. Our people do not appreciate the dignity and the 
honor which is theirs when they perform this solemn act of 
declaring the principles of government. 

Our ordinary political acts are swayed by personal feeling. 
We elect the most popular man. We pass laws that would 
benefit this, that or the other locality or class. It is a con- 
stant struggle to keep out of the decisions of a jury, and, 
indeed, often the decisions of the court, the influences of 
personal feeling and personal predilection. 

All these things are but the ordinary course of life. Above 
them all, rising into that field where men look to revelation, 
the sovereign people act, when for all peoples and for all time 
and for all nations, divesting themselves of sympathy and 
affection, of hatred and revenge, of selfish interests and 
impulses, abstractly, impersonally, they declare the principles 
of national morality in that voice which then and then only 
as the voice of the people is the voice of God. 

The perpetuity of a nation depends not upon its material 
petty achievements; it depends not upon its culture or its 
learning; not upon its castes; not upon its right living alone. 
It depends upon its finding for itself the secret of the world's 
Hfe, upon its finding for itself the spirit, the informing spirit, 
which makes a nation to live because it is doing the work of 
the Divine Ruler of the Universe. 

And the declaration of that spirit, the answer to that vital 
and eternal question, the people of the United States of 
America embodied in the great rules of justice of their Con- 
stitution. We should spurn with contempt the idea that the 
discharge of that great oflSce, the performance of that 



502 ADMINISTRATION OF JUSTICE 

supreme duty, should be lowered to the grade of ordinary 
conduct and subjected to the influence of ordinary impulses 
and interests. Let us keep it separate and apart, let us 
sanctify it and prepare ourselves for it by love of country 
and of kind, and by devotion to the principles of liberty and 
justice, and never treat as tolerable the attempt to degrade 
that great function to the ordinary level of the market-place, 
of the quarrel, of the selfish interest. There lies the life or 
there comes the death of our beloved country. It is for us 
whose lives are cast in such lines that we can see and feel the 
difference between that high function and the ordinary things 
of life, to teach our friends and neighbors the secret of the 
great judgment of our free democracy, that they may 
reverence it and preserve it always. 



THE LAWYER OF TODAY 

ADDRESS BEFORE THE NEW YORK COUNTY LAWYERS 
ASSOCIATION, NEW YORK CITY. MARCH 13, 1915 

In 1899, after the resignation of General Russell A. Alger, Secretary of War in 
President McKinley's Cabinet, Mr. Root, then practicing at the New York bar, 
was offered the portfolio of war under the circumstances and for the reasons stated 
by Mr. Root himself in the following address. Mr. Root served as Secretary of War 
from Augiist 1, 1899, to February 1, 1904, when he resigned in order to resume the 
practice of his profession in New York. Upon the death of the Honorable John Hay, 
Secretary of State, Mr. Root was invited by President Roosevelt to become Secre- 
tary of State, and was commissioned as such July 7, 1905. He resigned this office 
on January 27, 1909, after his election as United States Senator by the legislature of 
New York, for the term beginning March 4, 1909, and ending March 4, 1915. Upon 
the completion of his term in the Senate, he returned to New York, where his home- 
coming after an absence of sixteen years, with a few months' interval, was greeted 
and celebrated by his former associates of the bar. 

I FIND it difficult, impossible, to express adequately the 
feeling which I have in this greeting on my return to my 
home, and to the bar in which, forty-eight years ago, I cast 
my life and centered my ambitions. It is very delightful for 
me, after years of absence, to find here this great association 
of the bar which marks by its activity and its enthusiasm the 
growth of a common spirit and a common purpose among the 
members of the profession, upon which I feel rests the high- 
est responsibility and the most imperative duty for the wel- 
fare and the future development of our country. 

I do not feel that I have ever left the profession. If you 
will pardon me for repeating an incident, somewhat personal, 
I may illustrate the reason why I feel that I have never left 
the profession. Sixteen years ago, in the month of July, 
having just finished the labors of the year and gone to my 
country home, I was called to the telephone and told by one 
speaking for President McKinley, " The President directs me 



504 ADMINISTRATION OF JUSTICE 

to say to you that he wishes you to take the position of Secre- 
tary of War." I answered, " Thank the President for me, 
but say that it is quite absurd, I know nothing about war. 
I know nothing about the army." I was told to hold the wire, 
and in a moment there came back the reply, " President 
McKinley directs me to say that he is not looking for any one 
who knows anything about war or for any one who knows 
anything about the army; he has got to have a lawyer to 
direct the government of these Spanish islands, and you are 
the lawyer he wants." Of course I had then, on the instant, 
to determine what kind of a lawyer I wished to be, and there 
was but one answer to make, and so I went to perform a 
lawyer's duty upon the call of the greatest of all our clients, 
the Government of our country. 

And I have never felt for a moment that I have stepped 
outside of the noble profession to which I had intended to 
devote my life. It was a fascinating work. It was the work 
of applying to some ten millions of people in Cuba and Porto 
Rico and the PhiMppines, the principles of American liberty. 
They were living under laws founded upon the customs of 
their lives, customs drawn from old Spain and developed in 
social and industrial activity quite unlike that of the United 
States; and the problem was to make those principles which 
are declared in our constitutions, which embodied the forma- 
tive idea of the Declaration of Independence that all men are 
endowed with inalienable rights among which are life and 
liberty and the pursuit of happiness, to the customs and the 
laws of peoples which had come down from the Spain of 
Philip the Second and the Inquisition. Those principles 
were alien to their thoughts and their conceptions, to their 
habits of life, to their ideas of the relations between men and 
between men and their governments. In the first instance 
they had to be applied at the hand of the military officers 
who had their own code and methods of procedure. It was 



THE LAWYER OF TODAY 505 

a test not to be undervalued, of the vitality, the universality, 
and the essential truth of the principles themselves. Through 
the strong and sagacious control of Governor Taft in the 
Philippines; through the sound administrative instincts and 
devotion to duty of Leonard Wood in Cuba; through the 
loyalty of George W. Davis, and his successors in Porto Rico, 
those principles of justice, principles of state morality, which 
we have embodied in our constitutions, constitutions which 
are but the expression of the conception of individual liberty 
that has grown through a thousand years of Anglo-Saxon 
freedom, proved still to be vital, and the laws of these Span- 
ish countries received, embodied and made effective the 
preservation of individual liberty and the protection of the 
individual against the tyranny of government. The ideas 
that were forced upon King John when he signed the Magna 
Charta, — that great and conquering conception of liberty 
which has been the formative power moulding the social and 
political life of the hundred and ten million people who inhabit 
this continent north of the Rio Grande, — prevailed and 
became effective as applied to the daily life, the protection, 
the prosperity and the happiness of the little brown brothers 
in the Philippines; of the men whom we fought the war of 
1898 to liberate in Cuba and of our wards in Porto Rico. 
Surely no lawyer was ever more fortunate than in the oppor- 
tunity to help in the demonstration of the eternal verity of 
the principles of justice and liberty which underlie all the 
efforts and the struggles of our American bar. 

Now I return. I escaped once after going to Washington, 
but was caught and carried back, and now I have come again. 
Forty-eight years after my entrance to the bar, I have come 
again to my old home to meet the faces and the friendship of 
many an old associate and to take my accustomed place with 
my brethren at the bar of New York; but I find here that 
there are new conditions to which the old principles are to be 



506 ADMINISTRATION OF JUSTICE 

applied, conditions which did not exist, which never entered 
our minds in those early days, when, almost a boy I sat at the 
feet of Choate, of Choate with all the charm and power of his 
young manhood; Choate the inimitable, the incomparable; 
always our leader. Then we thought only what is the law, 
the underlying principles were never questioned, the only 
duty was to reason straight from them to the conclusion 
which would win our client's case. But now the postulates 
are all denied. The foundations upon which we builded are 
questioned; we are told that our laws put the dollar above 
the man, a rhetorical expression which I suppose means that 
one man's right to a dollar is to be regarded as higher than 
another man's right to five dollars. We are told that liberty 
of contract is to be regarded as limited by the incapacity of 
the citizen to make a contract which will be injurious to him. 
We are told that the liberty of the individual must be sub- 
ordinated to the obligation to conform his conduct to the con- 
duct of a class, with the natural corollary and further step 
that the state, the greatest of all classes, is everything and 
the individual is nothing. We find here and there and every- 
where doubt, which means, if it means anything, a question 
whether there is any standard of right, whether there is any 
basis of ethics apart from the will of a majority. All the 
bases of our profession are subject to reexamination. Who 
is to do it ? Who is to lead in it ? Who is to do the thinking 
and the teaching and the arguing and the persuading ? Can 
the bar now confine itself to the interests of the particular 
case ? Can the lawyer of power and intellect now satisfy his 
conscience by devoting his life solely to determining whether 
his client or another's shall have so much money or so much 
property ? Ah, in this new era the duties of the bar have 
multiplied and changed in their character. We must make 
the people of our country believe again in the jurisprudence 



THE LAWYER OF TODAY 507 

of their country. It is not enough to quote decisions. All 
this vast multitude of judicial decisions that have been piled 
up year after year and generation after generation, do not 
suffice. No country can have its laws enforced unless the 
people of the country believe in them. Recall something 
that has occurred to all of us. We think of the old judges in 
those strong, terse decisions long ago when without quoting 
precedents, or arguing about what others had said, they 
stated what ought to be so and made it so by their decisions. 
We have got to carry the people of our country again through 
such a process as that, so that they will recognize the iden- 
tity of oiu- law with our justice. We must check the impulse 
seen too often among too many intelligent Americans, to 
think that we can get along by everybody's doing what is 
about right or what he thinks to be right; for no country can 
maintain its liberty, no country can maintain its industry 
without the certainty, the confidence, that rests upon an 
accepted and respected system of jurisprudence, and there 
can be no accepted and respected system of jurisprudence 
that is not maintained, defended and asserted by a bar of 
courage and devotion. 

It is with inexpressible satisfaction that I perceive that the 
bar of my own state and city are equal to this new and larger 
duty. I recall the difference between the attitude of the bar 
towards the revision of the constitution of the state twenty- 
one years ago, and its attitude now. W^en we went into that 
convention of 1894, over which Mr. Choate presided with 
such charming humor, such lofty corn-age and such sublime 
indifference to the rules of parliamentary law, we went as one 
might have come out of the wilderness where he had been for 
months without word with a fellow-man; nobody thought 
about it beforehand, nobody paid any attention to it and 
the members of the convention had to evolve out of their 



508 ADMINISTRATION OF JUSTICE 

inner consciousness with the assistance of a few especially 
advanced cranks, all their ideas of what the constitution 
ought to be. 

Now the whole state is alive. All the bar associations have 
been literally buzzing with discussion as to what the con- 
stitution should be. Commercial organizations, voluntary 
organizations for charity and education, and philanthropy, 
for business, for trade, for manufacture, aU over the state 
have been busying themselves with the study, the con- 
sideration and the discussion of questions as to what our 
fundamental law should be. Where we had hundreds, I 
presume we shall be blessed with thousands of proposals for 
amendment of the constitution. 

There has been a radical change in the attitude of the bar 
of the state towards public questions. The bar has risen 
out of its interment in the individual case, out of its concen- 
tration of interest in the success of plaintiff or defendant in 
the particular case, into a realization of its interest and its 
duty to the law; to the law by which we all live, by which our 
peace and order and prosperity and opportimity for all the 
blessings of civilization come; and upon my return, looking 
at you and your activities, with all the advantage of the 
detachment of these past sixteen years, I hail with gratifi- 
cation beyond expression the growth, the development, the 
enlargement, the ennobling of the bar of New York. 

I remember in Oneida County, from which I came to this 
city fifty years ago to seek my fortune, the figures of a group 
of great lawyers. Samuel Beardsley, Hiram Denio, and 
Joshua Spencer seemed to me to be nobler than all the mon- 
archs and generals and statesmen of the books. During these 
fifty years, I have known, and it has been my happiness to be 
the friend of a great succession, O'Connor, Field, Evarts, 
Carter, and Choate, worthy to carry on the great leadership 
that began with Hamilton and Jay and Kent, worthy to place 



THE LAWYER OF TODAY 509 

the bar of this greatest of states of the greatest of republics 
upon the high standard of devotion, ever illustrated by the 
words of Erskine, " I will at all hazards forever maintain the 
dignity, independence and integrity of the English bar, with- 
out which impartial justice, the most valuable part of the 
English Constitution, can have no existence." I remember a 
few months ago seeing an account of a piece of pottery which 
was dug up in a recent excavation at Pompeii, on which some 
old fellow had recorded his lamentation because the old cus- 
toms were passing away and everything was going to the 
devil. Sometimes I suppose we all feel as he did; but I cling 
with great tenacity to a belief in the eternal verity of the 
principles of Anglo-Saxon freedom, growing from Magna 
Charta, through all the struggles of the Commons of England, 
embodied in the American Constitution and the hope, I 
believe, of the liberty of the world. Against all cavil, against 
all doubt and despondency, I place for the preservation of 
those principles my confidence in the substantial integrity 
and loyalty of the bar of my own city, my own state, and my 
own coimtry. 



INDIVIDUAL LIBERTY AND THE RESPONSI- 
BILITY OF THE BAR 

ADDRESS AT THE ANNUAL DINNER OF THE NEW YORK STATE BAR 
ASSOCIATION, JANUARY 15, 1916 

IT must have occurred to all of you that it is rather hard to 
sit through a long evening and hear praise to one's face. I 
hope you do not think that I really believe it all. It is a well- 
founded maxim that in practical affairs of life it is wise not to 
put so much stress on the grammatical construction of what 
people say as to try to divine the reason why they say it; 
and so I have taken all these things which have been said 
about me with a feeling that they denote the kindliness of 
old friendship and the generous warmth of loyalty to an old 
companion at the bar. 

The world is apt to be all praise or all blame, and some- 
times all praise alternating with all blame, and when the 
members of a profession or a calling impute to one of their 
number a multitude of noble qualities it is fair to infer that 
they are really expressing their own conception of what their 
profession is and what they would like their fellow-members 
to be; and in that conception of the true spirit and the noble 
character and the exalted purpose of the profession of the 
law, I am with you with all my heart. 

I am just a lawyer, from the ground up, and everything 
that I have done in my life has been as an incident to a 
lawyer's career, responding to the calls made upon a lawyer 
under the responsibilities of his oath and his conception of a 
lawyer's duty. 

I have been much removed from the activities of the pro- 
fession for many years because the engrossing character of 

fill 



512 ADMINISTRATION OF JUSTICE 

duties in the Departments and in the Senate in Washington 
has been such as absolutely to forbid the giving of any time 
or strength to the practice of law, and now I have come back, 
I have come home to my old friends and my old haunts and 
taken up the old course of going up and down town daily, as 
I used to do forty or fifty years ago. 

It is very grateful and delightful to feel that in my long 
absence I have not been forgotten; that for many an old 
friend who has passed away a new one has been found to 
take his place. 

But I think I have come back to the profession with a little 
sense of detachment and with a view from the outside, look- 
ing at it as a whole, free from those prepossessions of interest 
in the particular case which absorb us so fully in our ordinary 
practice; and there is one thing that has during the past few 
months been filling my mind and that I would like to say to 
you; it seems to me that dmring the period of fifty years 
since I was first opening my eyes to the field of the common 
law under John Norton Pomeroy in this city a great new 
duty has come to the profession of the law. 

We had then to appeal to established and imquestioned 
principles. The duty of the lawyer was boimded by that 
established, firm, impregnable barrier of legal principle: the 
application of the well-understood principles of law to the 
maintenance of his client's rights was the limit of his ordinary 
obligation. Now the whole field has broadened. Funda- 
mental principles are questioned, doubted, discussed, possibly 
endangered. 

Our country, which seemed then so secure, so peaceful, so 
certain in its prospect of prosperity and peace and order, is 
passing in under the shadow of great responsibilities and 
great dangers to its institutions. 

We are no longer isolated. The ever-flowing stream of 
ocean which surrounds us is no longer a barrier. We have 



RESPONSIBILITY OF THE BAR 513 

grown so great, the bonds that unite us in trade, in influence, 
in power, with the rest of the world have become so strong 
and compelhng that we cannot live unto ourselves alone. 

New questions loom up in the horizon which must be met; 
questions upon which we have little or no precedent to guide 
us; questions upon the right determination of which the 
peace and prosperity of our country will depend. Those 
questions can be met only by a nation worthy to deal with 
them. They can be met by a democracy only as it is pre- 
pared for the performance of its duty. 

Something has been said about the proposed constitution 
and its defeat. I give you my word that the instant the neces- 
sity of concentration upon the work of the constitutional 
convention had passed, my mind sprang back to these grave 
and serious dangers that threatened our country so com- 
pletely that when the constitution was defeated it was a 
scarcely noted incident in my life. 

How are we to meet the future, and what is the respon- 
sibility of the bar, that is the guardian of American law, 
toward meeting that future ? It is not a matter of oppor- 
tunism; it is not a matter of temporary expedient. The 
situation cannot be dealt with by merely doing what seems 
to you and to me to be the expedient thing in this situation 
and in that situation today or tomorrow. Our people must 
base themselves upon a foundation of principle. They must 
renew their loyalty to ideals. And the basic principle is the^ 
principle of American law. 

It is the principle of individual liberty which has grown out 
of the life of the Anglo-Saxon race and has been waxing strong 
during all the seven hundred years since Magna Charta. 
That was the formative principle that made America, the 
United States and Canada, from the Atlantic to the Pacific, 
from the Gulf to the frozen north, English speaking, pursuing 
the course of the common law, preserving liberty and doing 



514 ADMINISTRATION OF JUSTICE 

justice. That, the power of that principle of individual 
liberty that developed in the life of our race, is the greatest 
formative power in the history of the world. Over against it 
stands the principle of the state. Upon the one hand is the 
declaration in that great instrument, the value of which we 
hardly yet appreciate, the immortal Declaration, penned by 
Thomas Jefferson, that all men are created with unalienable 
rights, which governments are created to preserve. On the 
other hand is the principle that states are created with 
supreme rights which all individuals are bound to observe. 
The one centers the system of law and order and justice upon 
the inalienable right of the individual; the other centers the 
system of law and order and justice upon the rights of the 
state, which subordinates the rights of the individual, and 
that is the fundamental question which is being fought out 
upon the battlefields of Europe. 

Here in this country we have enjoyed liberty and order so 
long that we have forgotten how they came. Our people 
assume that they come as the air comes, to be breathed; 
they have assumed that they will, of their nature and by their 
own force, continue forever, without effort. Ah, no ! Liberty 
has always been born of struggle, it has not come save 
through sacrifice and the blood of martyrs and the devotion 
of mankind. And it is not to be preserved except by jealous 
watchfulness and stern determination always to be free. 

That eternal vigilance is the price of liberty is such a 
truism that it has lost its meaning, but it is an eternal truth, 
and the principles of American liberty today stand in need of 
a renewed devotion on the part of the American people. We 
have forgotten that in our vast material prosperity . We have 
grown so rich, we have lived in ease and comfort and peace so 
long, that we have forgotten to what we owe those agreeable 
incidents of life. We must be prepared to defend our indi- 
vidual liberty in two ways. We must be prepared to do it 



RESPONSIBILITY OF THE BAR 515 

first by force of arms against all external aggression. God 
knows I love peace and I despise all foolish and wicked wars, 
but I do not wish for my coimtry the peace of slavery or dis- 
honor or injustice or poltroonery. I want to see in my coun- 
try the spirit that beat in the breasts of the men at Concord 
Bridge, who were just and God-fearing men, but who were 
ready to fight for their liberty. And if the hundred million 
people of America have that spirit and it is made manifest 
they will not have to fight. 

But there is another way in which we must be prepared to 
defend it, and this is necessary to the first: We must be pre- 
pared to defend it within as against all indifference and false 
doctrine, against all willingness to submit individual inde- 
pendence to the control of practical tyranny, whether it be 
of a monarch or a majority. 

Now there are certain circumstances which tend toward 
weakening the allegiance of the American people to the 
fundamental principles upon which the law of America is 
based. One of them is that the changes in conditions have 
required and are continually requiring extensions of govern- 
ment, governmental regulation and control, in order to 
prevent injustice; and we naturally turn in the creation of 
these new and necessary regulations to those govermnents 
which have been most eflficient in regulation, and those are 
the governments which sacrifice individual liberty for the 
purpose of regulating the conduct of men; and so the 
tendency is away from the old American principles toward 
the principles of bureaucratic and governmental control 
over individual life; a dangerous road for a free people to 
travel to attain necessary results, and the danger is that in 
attaining those results the true principles of liberty be lost 
sight of. 

Another circumstance which we ought not to lose sight of 
is the fact that a vast number of people have come to the 



516 ADMINISTRATION OF JUSTICE 

United States within very recent times from those countries 
of Europe which differ so widely in their fundamental con- 
ceptions of law and personal freedom from ourselves. 

The millions of immigrants who have come from the con- 
tinent of Europe have come from communities which have 
not the traditions of individual Hberty, but the traditions of 
state control over liberty; they have come from communities 
in which the courts are part of the administrative system of 
the government, not independent tribunals to do justice 
between the individual and the government; they have come 
from communities in which the law is contained in codes 
framed and imposed upon the people by superior power, 
and not communities Hke ours, in which the law is the 
growth of the life of the people, made by the people, through 
their own recognition of their needs. 

It is a slow process to change the attitude of the individual 
toward law, toward political principles. It cannot be done 
in a moment, and this great mass of men, good men, good 
women, without our traditions, but with entirely different 
traditions, will change us unless we change them. 

Fifteen per cent of the lawyers of this city are foreign bom. 
Fifty per cent of the lawyers of this city are either foreign 
bom or of foreign parents. And the great mass of them have 
in their blood, with all the able and brilliant and good and 
noble men among them — have in their blood necessarily 
the traditions of the countries from which they came. They 
cannot help it. They will hold those traditions until they are 
expelled by the spirit of American institutions. That is a 
question of time. And somebody has got to look after it. 
Somebody has got to make the spirit of those institutions 
vocal. Somebody has got to exhibit belief in them, trust 
in them, devotion to them, loyalty to them, or you cannot 
win this great body from continental Europe to a true 
understanding of and loyalty to our institutions. 



RESPONSIBILITY OF THE BAR 517 

The change may well be seen in our colleges and law 
schools, where there are many professors who think they 
know better what law ought to be, and what the principles 
of jurisprudence ought to be, and what the political institu- 
tions of the country ought to be, than the people of England 
and America, working out their laws through centuries of life. 
And these men, who think they know it all, these half-baked 
and conceited theorists, are teaching the boys in our law 
schools and in our colleges to despise American institutions. 

Here is a great new duty for the bar, and if we have not 
been hypocrites during all these years in which we have been 
standing up in court and appealing to the principles of the 
law, appealing to the principles of our Constitution, demand- 
ing justice according to the rules of the common law for our 
clients; if we have not been hypocrites, we will come to the 
defense and the assertion — the triumphant assertion — of 
those principles upon which we have been relying. 

All classes and conditions of men are organized, the mer- 
chants, the manufacturers, the bankers, the clergymen, the 
farmers, the laborers, actively interested in the promotion of 
the ideals of their class or their calling. It is for lawyers to 
perform the highest duty, for the ideals of their class, or 
their calling, are the ideals of our country's free institutions. 

In the Association of the Bar of the City of New York, 
which we founded here forty -five years ago, and that admir- 
able County Bar Association, which has broadened out from 
the old association; in the admirable success of the State 
Bar Association, over which you, sir, preside with such 
eflBciency and grace; in the vastly increasing numbers of the 
American Bar Association, we can see steps toward the 
accomplishment of this high duty of our profession, for that 
duty cannot be performed by the lawyer alone immersed 
in the interest of a particular case; it can be performed only 
by stimulating and elevating a public opinion of the bar and 



518 ADMINISTRATION OF JUSTICE 

througli that influencing the public opinion of the country. 
Who is there who can speak with such authority to the 
American people as the body of the bar, which represents 
them in the administration of the law of their country ? 
Who is there on whom rests so great a responsibility for the 
preservation of the fundamental principles of the law, and 
who is there who, by tradition and teaching and the habits of 
their life, ought more gladly to accept the duty of making 
the fundamental groundwork of American Hberty a reality 
among a devoted and patriotic people ? 

The whole business of government, in which we are all 
concerned, is becoming serious, grave, threatening. No man 
in America has any right to rest contented and easy and 
indifferent; for never before, not even in the time of the Civil 
War, have all the energies and all the devotion of the Ameri- 
can Democracy been demanded for the perpetuity of Ameri- 
can institutions, for the continuance of the American RepubHc 
against foes without and more insidious foes within, than in 
this year of grace 1916. 

I am glad to come back to the bar in this time of its trials; 
I am proud of it. I believe in it, and I have confidence in the 
performance of its high duty in the future. 



PUBLIC SERVICE BY THE BAR 

ADDRESS AS PRESmENT OF THE AMERICAN BAR ASSOCIATION 

AT THE ANNUAL MEETING IN CHICAGO 

AUGUST 30, 1916 

ONE of the most striking effects of the great war is the 
extraordinary increase of national efficiency which has 
followed the spur of necessity. All over Europe among the 
struggling nations the virile and simple virtues have emerged 
from beneath habits of selfish indifference. Industry, inven- 
tive energy, thrift, self-denial, acceptance of discipline, sub- 
ordination of individual preferences to the general judgment, 
loyalty to ideals, devotion to country and willingness to make 
sacrifices for her sake have become general. A new gospel of 
patriotic service has replaced the cynicism of privilege and 
personal advantage. 

This change relates not merely to military efficiency but 
to the whole social economy and extends throughout the 
field of production and to all forms of consumption and 
waste. It carries a sense of individual responsibility by each 
citizen to help make his country strong by production and by 
conservation. 

"When the war is over we shall fiuid ourselves in a very dif- 
ferent world from that which witnessed the Austrian ulti- 
matum to Servia. It will be a world in which the greater 
part of the nations return to the peaceful competition of pro- 
duction and commerce with a vast increase of power to com- 
pete caused by the training of hardship and sacrifice. Plainly, 
the neutral nations who have neither endured the sufferings 
nor achieved the rewards of this hard experience may not 
look with indifference upon these events. They should real- 
ize the increased efficiency which they will have to meet when 



520 ADMINISTRATION OF JUSTICE 

they enter again upon the competition in which all civilized 
nations must engage. In the amazing developments of these 
years there are lessons for us to learn which we must not ignore. 
There are lessons not merely as to submarines and aeroplanes 
and high explosives, but as to the whole effective capacity of 
the nation by which it maintains its place and progress in the 
world in peace as in war. No human power can withhold the 
United States from taking part in the international compe- 
tition which will follow the return of peace. It is not a matter 
of volition. It cannot be controlled by legislation or by 
change of parties or by voting. The entire community of 
civilized nations is going through a phase of development 
from which no one of them can escape and continue to hold 
its own, and one of the necessary incidents of that develop- 
ment is competition in production and trade. The United 
States must therefore be prepared to meet competition car- 
ried on more effectively than ever before. The power of or- 
ganization will be at its highest; the advantages of applied 
science will be greatest; the hindrances of internal misunder- 
standing and dissension will be at a minimum. 

One of the most important features of the present Euro- 
pean development for Americans to consider is the fact that 
it has been along the line of military organization and discip- 
line. That surrender of individual liberty to superior con- 
trol which is essential to the discipline and efficiency of an 
army has been extended to civil life and applied in govern- 
mental direction of productive industry, of transportation, 
and of consmnption. The habits of communities accustomed 
to the least possible control over individual action proved 
wholly unfit in a sudden emergency to meet the military com- 
petition of highly disciplined masses. The question how far 
the abandonment of individuahsm and the establishment of 
rigid government control is to be continued or extended for 
purposes of efficiency in peaceful competition is of the highest 



PUBLIC SERVICE BY THE BAR 521 

interest and importance to us. This importance is quite 
independent of the question how far it is probable that we 
shall be required to defend our wealth and security against 
aggression by anned force. 

In either view it is plainly the duty of all Americans, what- 
ever their calling, to consider by what means they can con- 
tribute through either the increase or the conservation of 
power in their own fields of action, towards the permanent 
higher eflficiency of the people of the United States. 

There is no body of citizens to whom this duty should ap- 
peal more strongly than to the lawyers, because the subject 
vitally affects the relations between the individual and the 
state regulated by law and the fundamental conceptions upon 
which our system of government is based. 

There are two relevant truths of universal application and 
appeal. One is, that the people of the United States need in 
one important respect a change of the individual attitude 
toward their government. Too many of us have been trying 
to get something out of the country and too few of us have 
been trying to serve it. Offices, appropriations, personal or 
class benefits, have been too generally the motive power that 
has kept the wheels of government moving. Too many of us 
have forgotten that a government which is to preserve liberty 
and do justice must have the heart and soul of the people 
behind it — not mere indifference. Too many of us have 
forgotten that not only eternal vigilance but eternal effort is 
the price of liberty. Our minds have been filled with the 
assertion of our rights and we have thought little of our 
duties. The chief element of strength which the nations of 
Europe are acquiring is the spirit of their people, who have 
learned a new loyalty of devotion and sacrifice for their coun- 
try. In a world where that spirit prevails the United States 
will slip back in the race unless we, too, have a new birth of 
loyalty and devotion. 



522 ADMINISTRATION OF JUSTICE 

The second general truth is, that national strength requires 
the spirit of solidarity among the people of the nation. Sec- 
tional or class misunderstanding and hatred or dislike are 
elements of vital weakness. To be strong a nation's citizen- 
ship must be a title to friendship and kindly interest among 
all her citizens. In a strong nation her people will be one for 
all and all for one. Every part of a country grows stronger 
with the prosperity of every other part. National wealth 
and prosperity are made up of the wealth and prosperity of 
individuals, and we cannot pull down each other without 
suffering as a people. The rights and privileges, the property 
and liberty and life of every American, whether he be at 
home or in Mexico or in the Far East, on land or sea, are our 
concern and the concern of each of us. Prosperity to him is 
a benefit to us ; misfortune to him is a loss to us; and it is 
vital to each one of us that we shall have such a country and 
such a government as shall put power and prestige and honor 
and active interest and inflexible resolution into the protec- 
tion of every American whose necessities may come by cir- 
cumstances to demand the performance of his nation's duty. 
Whenever a part of a people give themselves up to envy and 
jealousy of another part that may seem more prosperous, 
whenever a part of a people seek to equalize conditions by 
pulling down rather than by building up, the power of the 
nation begins to wane and the forces which should make the 
nation great and effective are impaired and wasted by inter- 
nal controversy and diminished patriotism. 

"When we turn to the particular field occupied by our pro- 
fession we cannot fail to see that oiu' country would be made 
stronger if we could change some characteristics in our 
administration of the law. 

There is great economic waste in the administration of the 
law viewed from the standpoint of the nation and of the 
states. There is imnecessary expenditure of wealth and of 



PUBLIC SERVICE BY THE BAR 523 

effective working power, in the performance of this particu- 
lar function of organized society. We spend vast sums in 
building and maintaining court houses and public oflfices and 
in paying judges, clerks, criers, marshals, sheriffs, messen- 
gers, jurors, and all the great army of men whose service is 
necessary for the machinery of justice, and the product is 
disproportionate to the plant and the working force. There 
is no country in the world in which the doing of justice is bur- 
dened by such heavy overhead charges or in which so great a 
force is maintained for a given amount of litigation. The 
delays of litigation, the badly adjusted machinery, and the 
technicaUties of procedure cause enormous waste of time on 
the part of witnesses and jury panels and parties. The ease 
with which admission to the Bar is secured in many juris- 
dictions and the attraction of a career which affords a living 
without manual labor has crowded the Bar with more law- 
yers than are necessary to do the busmess. Of the one hun- 
dred and fourteen thousand lawyers in the United States, 
according to the census of 1910, a very considerable part are 
not needed for the due administration of justice. If that 
business were conducted like the business of any great indus- 
trial or transportation company which is striving for the 
highest efficiency at the least cost in order to compete suc- 
cessfully with its rivals, a very considerable percentage of the 
one hundred and fourteen thousand would be discharged. 
We at the Bar are not producers. We perform indeed a neces- 
sary service for the community; and to the extent of that 
necessary service we contribute towards the production of all 
wealth and the effectiveness of all energy in the community, 
and we take toll, rightly, from all the property and business 
m the community for the service. Superfluous lawyers, how- 
ever, beyond the number necessary to do the law business of 
the country, are mere pensioners and drags upon the com- 
munity and upon all sound economic principles ought to be 



524 ADMINISTRATION OF JUSTICE 

set to some other useful work. There is plenty of work for 
them to do on the farms of the country. 

Why is it that these defects exist in American administra- 
tion of justice ? The American people are not quarrelsome 
or litigious. They are good natured, practical, simple, and 
direct in their methods of transacting their individual busi- 
ness, respecters of law, and honest in their dealings. Our 
Bar as a whole is courageous, loyal, and able. Our judges as 
a whole are just, high-minded, and competent. Why do we 
transact the business of administering justice in such an 
unbusinesslike way ? It is not difficult to point out particular 
laws and methods which are defective and to say that they 
ought to be changed; but there is still the question, how 
did they become defective, and why, after all our experience, 
do they continue defective ? 

I think the underlying cause of this defective administra- 
tion of justice is that the Bar and the people of the country 
generally, proceed upon a false assumption as to their true 
relation to judicial proceedings. Unconsciously, we all treat 
the business of administering justice as something to be done 
for private benefit instead of treating it primarily as some- 
thing to be done for the pubHc service. The administration 
of law is affected by that same general attitude which I have 
mentioned, in which citizens think about what they are going 
to get out of their country instead of thinking of what they 
can contribute to their country. Our poHtical system makes 
such an attitude on the part of the Bar very natural and easy. 
With our highly developed individualism, our respect for the 
sanctity of individual rights, our conception of government 
as designed to secure those rights, it is quite natural that 
lawyers employed to assert the rights of individual clients 
and loyally devoted to their clients' interest should acquire a 
habit of mind in which they think chiefly of the individual 
view of judicial procedure, and seldom of the pubHc view of 



PUBLIC SERVICE BY THE BAR 525 

the same procedure. It is natural that the same habit of 
thought should be carried into our legislatures by the law- 
yers who make up the greater part of those bodies ; and with 
our governments of narrow and strictly limited powers it is 
natural that there should be a continual pressure in the 
direction of promoting individual rights and privileges and 
opportunities and very Httle pressure to maintain the com- 
munity's rights against the individual and to insist upon the 
individual's duties to the community. There are indeed two 
groups of men who consider the interests of the community. 
They are the teachers in the principal law schools and the 
judges on the Bench. With loyalty and sincere devotion 
they defend the public right to effective service; but against 
them is continually pressing the tendency of the Bar and the 
legislatures and, in a great degree of the pubUc, towards the 
exclusively individual view. 

The public tendency is exhibited at the very beginning of 
the whole business in permitting admissions to the Bar with- 
out adequate education and training. Few ideas have been 
more persistent throughout this country than the idea that 
the prevailing consideration in determining admission to the 
Bar should be that every young man is entitled to his chance 
to be a lawyer and that all requirements of attendance in 
oflSces and law schools and for difficult examinations are so 
many obstacles in the way of hberty and opportunity, de- 
fenses of aristocratic privilege and derogations from demo- 
cratic right. The law schools have been slowly winning their 
way along the hnes of better training for the Bar, but the 
progress is very slow and the pressure for brief and easy ways 
to get a hcense to practice is continuous. Only last year the 
Massachusetts legislature, by statute, reduced the require- 
ments of school attendance for admission to the Bar to two 
years of evening high school, following upon an agitation 
carried on in support of the principle, " Let every man have 



526 ADMINISTRATION OF JUSTICE 

his chance." One of our states, and a very great state indeed, 
with a very high average of general cultivation, permits 
anyone of good moral character to practice law. Corre- 
spondence schools of law flourish, proceeding upon the idea 
that a man can become a lawyer incidentally by reading law 
books in spare hours as he goes along with his ordinary occu- 
pation. The constant pressure of democratic assertion of 
individual rights is always towards reducing the difficulty 
of bar examinations. One consequence is the excess of law- 
yers that I have mentioned. Another consequence is that 
the efficiency of our courts is reduced, their rate of progress 
retarded, the expense increased, their procedure muddled 
and involved by an appreciable proportion of untrained 
and incompetent practitioners; by badly drawn, confused, 
obscure papers difficult to understand ; by interlocutory 
proceedings which never ought to have been taken and pro- 
ceedings rightly taken in the wrong way and inadequately 
presented ; by vague and haphazard ideas as to rights and 
remedies; by ignorance of the principles upon which our 
law of evidence is based ; by ignorance of what has been 
decided and what is open to argument; by waste of time with 
worthless evidence and useless dispute in the trial of causes; 
by superfluous motions and arguments and appeals ; and by 
the correction of errors caused by the blunders of attorneys 
and counsel. In many jurisdictions there is a considerable 
percentage of the Bar whose practice causes the courts 
double time and labor because the practitioner is not prop- 
erly trained to use the machinery furnished by the public 
for the protection of his clients. In the meantime other 
litigation waits and the pubHc pays the expense. There is 
another evil arising from defective education. These half- 
trained practitioners have had Uttle or no opportunity to 
become imbued with the true spirit of the profession. That 
is not the spirit of mere controversy, of mere gain, of mere 



PUBLIC SERVICE BY THE BAR 527 

individual success. To the student of the law, there come 
from Hortensius and Cicero, and Malesherbes and DeSeze, 
and Erskine and Adams, from all the glorious history of the 
profession of advocacy, great traditions and ethical ideals and 
lofty conceptions of the honor and dignity of the profession, 
of courage and loyalty for the maintenance of the law and 
the liberty that it guards. It is to a Bar inspired by these 
traditions, imbued with this spirit, not commerciaHzed, not 
playing a sordid game, not cunning and subtle and technical 
or seeking unfair advantage — a Bar jealous of the honor of 
the profession and proud of its high calling for the mainten- 
ance of justice — that we must look for the effective admin- 
istration of the law. The old customs under which the young 
law student was really guided and instructed in the law oflBce 
of the established practitioner, under which the youth was 
impressed by the example and spirit and learning of his 
senior, are rapidly passing away. In the greater part of the 
country these customs no longer continue. The Law school 
has taken the place of the law office, except for acquiring the 
mere technique of practice, and the rights of the people of 
the United States to have an effective administration of the 
law require that the standards of the best law schools shall 
be applied to determine the right to membership in the Bar. 
When we compare our own method with the test of the three 
years' probation of the French Licentiate and the arduous 
four years' training of the German Refendar we may realize 
how little the American people have had in mind the protec- 
tion and promotion of the public interest in requiring com- 
petency at the Bar. 

. No one can help sympathizing with the idea that every 
ambitious young American should have an opportunity to 
win fame and fortune. But that should not be the controlling 
consideration here. The controlling consideration should be 
the public service, and the right to win the rewards of the 



528 ADI^HNISTRATION OF JUSTICE 

profession should be conditioned upon fitness to render the 
public service. No incompetent sailor is entitled to command 
a public ship; no incompetent engineer is entitled to con- 
struct a public work; no untrained lawyer is entitled to 
impair the efficiency of the great and costly machinery which 
the people of the country provide, not for the benefit of 
lawyers but for the administration of the law. 

The same failure to realize that the Bar has public duties 
as well as privileges has affected the relations which Amierican 
legislation has sought to estabHsh between the Bar and the 
Bench in the conduct of the business of the courts. In the 
hearing and decision of causes in all their stages the judge 
represents the pubKc interest; the lawyers in the case repre- 
sent primarily their particular clients. It is the function of 
the judge to promote the will of the sovereign people that jus- 
tice be done to all parties before him; to see to it that the facts 
are reaUy ascertained; that the law is honestly applied; that 
unfair advantage is not taken; that witnesses are protected 
against improper treatment; that the pubhc time is not 
wasted. On the other hand, it is the business of the lawyer 
to conduct a case so that his client will win. His relations to 
the case tend to give him a one-sided view of what is just and 
fair in that case. The ardor and stress of conflict are not 
favorable to abstract considerations of justice. He is con- 
cerned in exhibiting the facts which will help his client; in 
stating the law upon which his own side rehes; in breaking 
down witnesses against him and strengthening witnesses in 
his favor. On each side counsel plays the game for all that 
it is worth and sometimes superiority of counsel outweighs 
superiority of merit. Doubtless this contention, this struggle 
between the opposing sides of the case, is the best possible 
way in the long run to reach just results. But it is plain that 
in all the transaction the representative of pubhc justice is 
the judge on the bench and that there is necessarily between 



PUBLIC SERVICE BY THE BAR 529 

him and the counsel on each side always a certain antagonism 
and contention. The natural tendencies of the American 
people emphasize this antagonism. We are restive under 
authority. We do not yield readily to discipline. We are 
unwilling to accept defeat. In every game we exaggerate the 
importance of success in comparison with all the rest of life. 
The restiveness of the Bar under the control of the judge on 
the bench finds its expression very widely in our legislation 
regarding procedure. That legislation is of course framed by 
the lawyers in our legislatures, and unconsciously, doubtless, 
their natural attitude of antagonism has led to a great multi- 
tude of provisions designed to protect the Bar against inter- 
ference from the Bench. 

The most striking illustration of this tendency is presented 
by the provisions found in many states, and quite recently 
urged upon Congress, prohibiting the judge from expressing 
any opinion to the jury upon questions of fact. From time 
immemorial it has been the duty of the court to instruct 
juries as to the law and advise them as to the facts. Why is 
it that by express statutory provision the only advice, the 
only clarifying opinion and explanation regarding the facts 
which stands any possible chance to be unprejudiced and fair 
in the trial of a cause, is excluded from the hearing of the 
jury ? It is to make it certain that the individual advantage 
gained by having the more skillful lawyer shall not be taken 
away. It represents the individual's right to win if he can 
and negatives the public right to have justice done. It is to 
make litigation a mere sporting contest between lawyers and 
to prevent the referee from interfering in the game. The fact 
that such provisions can be established and maintained ex- 
hibits a democracy's tendency to yield support to the human 
interest of the individual as against the exercise of even its 
own power by its own representatives and for its own 
highest purposes. 



530 ADMINISTRATION OP JUSTICE 

Under the influence of the same disposition a large part 
of the detailed and specific legislative provisions regulating 
practice are really designed to enable law business to be 
carried on without calling for the exercise of discretion on 
the part of the court, and the evil results of the absurdly 
technical procedure which obtains in many states reaUy come 
from intolerance of judicial control over the business of the 
courts. A clearer recognition of the old idea that the state 
itself has an interest in judicial procedure for the promotion 
of justice, and a more complete and unrestricted control by 
the court over its own procedure would tend greatly to make 
the administration of justice more prompt, inexpensive and 
effective; and this recognition must come from the Bar 
itself. 

The present condition of our law presents very strong 
reasons why lawyers should awaken to a sense of responsibility 
for another and stiU more serious service which will require 
a Bar made strong by the application of stringent tests for 
admission, and by the best work of the best law schools in its 
training. The vast and continually increasing mass of re- 
ported decisions which afford authorities on ahnost every side 
of ahnost every question admonish us that by the mere 
following of precedent we should soon have no system of law 
at all, but the rule of the Turkish cadi who is expected to do 
in each case what seems to him to be right; and then the 
door would be thrown wide open for the rule of men rather 
than the rule of law, and for the exercise of personal injustice 
as well as personal justice. We are approaching a point 
where we shall run into confusion unless we adopt the simple 
and natural course of avoiding confusion by classification, 
system, the imderstanding and appUcation of generally recog- 
nized and accepted legal principles. The slow development 
of the common law with its rich product of legal ideas and 
remedies has followed the lines of legal principles ; but at all 



PUBLIC SERVICE BY THE BAR 531 

times the application of legal principles has been conditioned 
upon the customs from which the law has been evolved and 
to which the rules established have been applied. It is no 
slight task for discriminating intelligence to distinguish the 
principles which have been applied from the incidents of 
their application, arising from the social and industrial and 
political conditions of the day, involved in the multitude of 
reported cases that record the progress of the common law. 
Yet it is continually more important that the Bar at large 
shall be trained to see through the precedents and the inci- 
dents to the controlling principles. A few men are already 
taking the lead in the work of classification — some, great 
teachers ; some, great judges ; some, great practitioners. 
But these few play only a small part in administering the law. 
Thousands of judges and tens of thousands of lawyers in all 
the cities and villages of this great country are doing that, 
and the problem of classifying and simplifying our law in- 
volves the need to carry to the great mass of them, present 
and future, a comprehension and discriminating understand- 
ing of the legal principles which form the thread of Ariadne 
for guidance through the labyrinth of decisions. How can 
that be done ? Not by writing text books ; the book stores 
swarm with them already. Not by preaching reform ; no- 
body listens. Not by the imposition of a system to be 
accepted, as Continental Europe accepted the Roman law. 
No such system would be accepted. It would be ignored. 
All our instincts are against it. Some very able and public- 
spirited lawyers have been for some years urging the organi- 
zation of a definite and specific movement for the restate- 
ment of our law ; for a new American Corpus Juris Civilis. 
They are quite right. It ought to be done. But who is to 
do it and how shall he be recognized as a prophet ? Can we 
elect him by popular vote? Can we select him upon our 
own acquaintance with men of genius and self-devotion ? 



532 ADMINISTRATION OF JUSTICE 

No. Such a man or such a group of men must be the product 
of natural selection. They must be evolved by the condi- 
tions of life, and they must speak to an audience prepared 
to listen. 

The only way to clarify and simplify our law as a whole is 
to reach the lawyer in the making and mold his habits of 
thought by adequate instruction and training so that when 
he comes to the Bar he will have learned to think not merely 
in terms of law but in terms of jurisprudence. The living 
principle of the case system of instruction in our law schools 
is that the student is required by a truly scientific method of 
induction to extract the principle from the decision and to 
continually state and restate for himself a system of law 
evolved from its history. He is thus preparing not merely to 
accept formally dogmatic statements of principles but to 
receive and assimilate and make his own the systematic 
thought and learning of the world in the science of jurispru- 
dence. With a Bar subjected generally to that process of 
instruction, the more general systematic study of juris- 
prudence would follow naturally and inevitably, and the 
influence of that study would be universal ; and from that 
condition would evolve naturally the systematic restatement 
of our law, by men equal to that great work. Pour sand 
slowly upon the level ground ; the conical pile produced will 
have a fixed relation between the area of its base and the 
height of the cone. It is so with human society. We must 
broaden knowledge and spirit to build up and we must build 
up to broaden. 

To deal with American law as it is, however, is but half 
the problem. We are in the midst of a process of rapid 
change in the conditions to which the principles of law are 
to be applied, and if we are to have a consistent system that 
change must be met not at haphazard but by constructive 
development. The industrial and social changes of our time 



PUBLIC SERVICE BY THE BAR 533 

have been too swift for slowly forming custom. Old rules, 
applied to new conditions never dreamed of when the rules 
were stated, prove inadequate too suddenly for the courts 
readily to overtake them with application of the principles 
out of which the rules grew. We have only just begun to real- 
ize the transformation in industrial and social conditions pro- 
duced by the wonderful inventions and discoveries of the past 
century. The vast increase of wealth resulting from the 
increased power of production is still in the first stages of 
the inevitable processes of distribution. The power of organi- 
zation for the application of capital and labor in the broadest 
sense to production and commerce has materially changed 
the practical effect of the system of free contract to the pro- 
tection of which our law has been largely addressed. The 
interdependence of modern life, extending not merely to the 
massed city community but to the farm and mine and iso- 
lated factory, which depend for their markets and their sup- 
plies upon far distant regions and upon complicated processes 
of transportation and exchange, has deprived the individual 
largely of his power of seK-protection, and has opened new 
avenues through which, by means unknown to the ancient 
law, fatal injuries may be inflicted upK)n his rights, his pro- 
perty, his health, his liberty of action, his life itself. We 
have not yet worked out the formulae through which old 
principles are to be applied to these new conditions — the 
new forms perhaps through which the law shall continue to 
render its accustomed service to society. The arrival of new 
conditions to which the law must be adapted has its counter- 
part in the desuetude of old customs and the disappearance 
of the basis for old rules. The process of change in a nation's 
standards of conduct in life, which has made the Blue Laws 
of Connecticut a familiar evidence that laws once vigorous 
may die a natural death without repeal, is always going on. 
It is a part of the method by which the common law has de- 



534 ADMINISTRATION OF JUSTICE 

veloped. But that process seems to have been much accel- 
erated in recent years. Take for example the community's 
standard of conduct as applied to the domestic relations, the 
change in the customary rights and duties recognized be- 
tween parents and children, masters and servants, husbands 
and wives, the general relation between the sexes, which ap- 
parently is about to receive a new impulse towards change 
from the extension of women's work in Europe owing to the 
war. 

These rapid changes of conditions to which the law has to 
be adapted furnish the chief reason why we are bombarded 
by such a multitude of statutes, good, bad, and indifferent, 
seeking to accomplish changes by express prohibitions, com- 
mands, and statutory remedies. This mass of statutes pro- 
ceeds from natural impulses to hasten the development of 
the law in its application to conditions which move too 
rapidly for customs to form. Many of them will be futile, 
many will be abandoned, many will be modified, many will 
prove to be valuable contributions to the development of the 
law, many wiU prove to have been steps in the wrong direc- 
tion and to retard development. Taken altogether, they are 
themselves making customs from which the law of the future 
is being evolved. 

Doubtless a large part of the irritation and prejudice 
against the courts in recent years has been due to the mis- 
understanding of those who in their impatience set the courts 
down as opposed to progress because they themselves do not 
realize that there has been a progressive development of our 
law to meet the new conditions, but that by the nature of 
the institution such development must foUow and not pre- 
cede the pubhc conviction of its necessity. 

There is one special field of law development which has 
manifestly become inevitable. We are entering upon the 
creation of a body of administrative law quite different in its 



PUBLIC SERVICE BY THE BAR 535 

machinery, its remedies, and its necessary safeguards from 
the old methods of regulation by specific statutes enforced 
by the courts. As any commimity passes from simple to 
complex conditions the only way in which government can 
deal with the increased burdens thrown upon it is by the 
delegation of power to be exercised in detail by subordinate 
agents, subject to the control of general directions pre- 
scribed by superior authority. The necessities of our situa- 
tion have already led to an extensive employment of that 
method. The Interstate Commerce Commission, the state 
public service conunissions, the Federal Trade Commission, 
the powers of the Federal Reserve Board, the health depart- 
ments of the states, and many other supervisory offices and 
agencies are familiar illustrations. Before these agencies the 
old doctrine prohibiting the delegation of legislative power 
has virtually retired from the field and given up the fight. 
There will be no withdrawal from these experiments. We 
shall go on; we shall expand them, whether we approve 
theoretically or not, because such agencies furnish protection 
to rights and obstacles to wrongdoing which under our new 
social and industrial conditions cannot be practically accom- 
plished by the old and simple procedure of legislatures and 
courts as in the last generation. Yet the powers that are 
coromitted to these regulating agencies, and which they 
must have to do their work, carry with them great and 
dangerous opportunities of oppression and wrong. If we 
are to continue a government of limited powers these agen- 
cies of regulation must themselves be regulated. The limits 
of their power over the citizen must be fixed and determined. 
The rights of the citizen against them must be made plain. 
A system of administrative law must be developed, and that 
with us is still in its infancy, crude and imperfect. 

The development of our law under the conditions which 
I have pointed out will be accompanied by many possibilities 



536 ADMINISTRATION OF JUSTICE 

of injurious error. There wUl be danger that progress will 
be diverted in one direction and another from lines really 
responsive to the needs of the people, really growing out 
of their life and adapted to their character and the genius of 
their institutions, and will be attempted along the lines of 
theory devised by fertile and ingenious minds for speedy 
reforms. Ardent spirits, awakened by circumstances to the 
recognition of abuses, under the influence of praiseworthy 
feeling, often desire to impose upon the community their own 
more advanced and perfect views for the conduct of life. The 
rapidity of change which characterizes our time is provoca- 
tive of such proposals. The tremendous power of legislation, 
which is exercised so freely and with little consideration in 
our legislative bodies, lends itself readily to the accomplish- 
m«it of such purposes. Sometimes such plans are of the 
highest value. More frequently they are worthless and lead 
to wasted effort and abandonment. The test of their value 
is not to be found in the perfection of reason. Man is not a 
logical animal, and that is especially true of the people of the 
United States and the people of Great Britain, from whom 
our methods of thought and procedure were derived. The 
natural course for the development of our law and institutions 
does not follow the line of pure reason or the demands of 
scientific method. It is determined by the impulses, the 
immediate needs, the sympathies and passions, the idealism 
and selfishness, of all the vast multitude who are really from 
day to day building up their own law. No matter what 
legislatures and congresses and pubHcists and judges may do, 
the people are making their own law today as truly as in the 
earHer periods of the growth of the common law. No 
statute can ever long impose a law upon them which they do 
not assimilate. Whether repealed or not, it will be rejected 
and become a dead letter. No decision that is uiconsistent 
with their growth can long resist the pressure to distinguish 



PUBLIC SERVICE BY THE BAR 537 

and overrule. What can be done, what must be done to 
make true and uninterrupted progress is that those members 
of the democracy to whom opportunity has brought instruc- 
tion in the dynamics of law and self-government, shall so 
lead and direct the methods of development as to respond 
to the noblest impulses, the highest purposes, the most practi- 
cal idealism, of this great law-making multitude, so that the 
growth of the law shall receive its impetus from the best and 
not from the worst forces of the community, and be guided 
by the wisdom and not the folly, the virtues and not the 
vices, of the people. 

There will always be danger of seeking lines of law 
development which appear upon the surface to be progress, 
but which are really an abandonment of progress. Long- 
continued advance in this world in any useful direction is 
difficult and slow. Progress in self-government requires the 
self-governing people to apply rules of action to their own 
conduct; to limit themselves by seK-denying ordinances; to 
restrain their own impulses and cure thej[r own faults. There 
must be many shortcomings in such an effort. It is a hard 
road to travel, and wearisome, and success must be long 
deferred. Human nature turns readily to any proposal of 
swift and easy reform which may relieve it of the burdensome 
task of self-control by the exercise of compulsion on some one 
else. That is not reform; it is surrender. Infinite harm may 
be done by such attempts and long wandering and confusion 
of effort may ensue; but if the people are to go on with the 
development of their free self-government they must ulti- 
mately come back to take up themselves the burden which 
they have sought to escape. 

There will always be danger of developing oiu* law along 
lines which will break down the carefully adjusted distribu- 
tion of powers between the national and the state govern- 
ment. Upon the preservation of that balance, not necessarily 



538 ADMINISTRATION OF JUSTICE 

in detail but in substance, depends, upon the one hand, the 
maintenance of our national power and, on the other hand, 
the preservation of that local self-government which in so 
vast a country is essential to real liberty. There is a con- 
tinual tendency to restrict the exercise of national authority 
wherever it interferes with the local convenience or interest 
of a particular state or group of states; and, on the other 
hand, there is an equally persistent tendency to caU in the 
exercise of national power to perform the duties of local 
government where states lack effectively organized power or 
wish to be spared expense or see an opportunity to get money 
out of the national treasury for local use, or where some 
portions of the country wish to impose their ideas on the 
remainder of the country. The same states that are unwilling 
to give the national judiciary jurisdiction to enforce the pro- 
tection of ahens promised in national treaties or to permit a 
national force of citizen soldiery to be commanded by oflScers 
appointed by the national executive instead of mihtia officers 
appointed by the governors of the states, will urge Congress 
to pass sumptuary laws controlling the private life and con- 
duct of affairs in local communities and will hand over to the 
national government strictly local regulations for the sake of 
an appropriation. Powers thus conferred under special mo- 
tives and for special purposes do not revert. They are con- 
tinued. And if the process goes on our local governments 
will grow weaker and the central government stronger in 
control of local affairs until local government is dominated 
from Washington by the votes of distant majorities indiffer- 
ent to local customs and needs. "When that time comes the 
freedom of adjustment which preserves both national power 
and local Hberty in our system, will be destroyed and the 
breaking up of the Union will inevitably follow. 

More critical still is the danger of too great a reaction from 
the system of free contract upon which our government has 



PUBLIC SERVICE BY THE BAR 539 

long been developing — a reaction which will destroy the 
basis of individual liberty upon which our institutions rest. 
We are in the midst of a reaction now. It was inevitable. 
The individualism which was the formula of reform in the 
early nineteenth century was democracy's reaction against 
the law and custom that made the status to which men were 
born the controlling factor in their lives. It was an assertion 
of each freeman's right to order his own life according to his 
own pleasure and power, unrestrained by those class limita- 
tions which had long determined individual status. The 
instrument through which democracy was to exercise its 
newly asserted power was freedom of individual contract, 
and the method by which the world's work was to be carried 
on in lieu of class subjection and class domination was to be 
the give and take of industrial demand and supply. Now, 
however, the power of organization has massed both capital 
and labor in such vast operations that in many directions, 
affecting great bodies of people, the right of contract can no 
longer be at once individual and free. In the great massed 
industries the free give and take of industrial demand and 
supply does not apply to the individual. Nor does the right 
of free contract protect the individual under those conditions 
of complicated interdependence which make so large a part 
of the community dependent for their food, their clothing, 
their health and means of continuing life itself, upon the 
service of a multitude of people with whom they have no 
direct relations whatever, contract or otherwise. Accord- 
ingly, democracy turns again to government to furnish by 
law the protection which the individual can no longer secure 
through his freedom of contract and to compel the vast 
multitude on whose cooperation all of us are dependent to do 
their necessary part in the life of the community. Plainly, 
in some directions and to some extent such governmental 
control is necessary; but we should not forget that every 



540 ADMINISTRATION OF JUSTICE 

increase of goveminental power to control the conduct of life 
is to some extent a surrender of individual freedom and 
a step backwards towards that social condition in which 
men's lives are determined by status rather than by their 
own free will. We should be careful that in promoting the 
efficiency of government we do it by the just appHcation and 
not by the surrender of the true principles upon which our 
government is foimded. Let me state the case in its simplest 
terms: The central principle of our system of government is 
in the proposition that every man has a right to full and 
complete individual liberty, limited only by the equal hberty 
of every other man. From that right all others are deduced; 
the right to life, to property, to the pursuit of happiness, are 
its corollaries. Our whole systemi of law is in its essence only 
the enforcement of the reciprocal limitations of individual 
liberty. It is a compulsion upon me to limit my Hberty by 
yours and upon you to limit your Hberty by mine. The 
justification of all laws and customs which constrain human 
conduct is that they are necessary and appropriate for the 
preservation of the Hberty of others. Whatever law passes 
beyond that limit and seeks to impose upon the individual 
the ideas of others as to what his conduct should be, whether 
to subserve the interests of others or to conform to their 
prejudices or to their ideas of propriety or wisdom, even 
though those others may constitute an overwhelming ma- 
jority of the whole community, is a violation of the principles 
upon which our government was formed; is not the just 
exercise of governmental power, but is essential tyranny. 
The test is difficult of appHcation. The incidence and the 
ultimate effect of law are often indirect and obscure. They 
depend upon a multitude of conditions imperfectly known 
and subject to controversy. The highest inteUigence and the 
broadest knowledge are needed for the appHcation of the 
test; but upon a sincere and unremitting effort that it shaU 



PUBLIC SERVICE BY THE BAR 541 

be applied in every step of the development of our law de- 
pends the question whether that development shall destroy 
or shall deepen and strengthen the foundations of our free 
government. 

What part is the Bar to play in this great work of the 
coming years ? Can we satisfy our patriotism and be con- 
tent with our service to our country by devoting all our 
learning and experience and knowledge of the working of the 
law and of our institutions solely to the benefit of individual 
clients in particular cases ? During all our mature lives, in 
many courts and upon many occasions we have been assert- 
ing rights, protecting property, preserving liberty, by appeals 
to the law, to the great rules of right conduct written into 
our constitutions; protesting against the abuse of official 
power, extolling justice, pleading for loyalty to our free in- 
stitutions. Have we meant it ? Has it all been mere talk 
for the purpose of winning cases ? Have we never really 
cared about law and justice except as available instruments 
to get particular clients out of trouble ? Is the Bar doing its 
duty and playing its part in the development of the law ? 
As a rule the leaders of the Bar devote themselves to their 
individual practice. As a rule the younger and least experi- 
enced lawyers make up the state legislatures. There are 
exceptions, but that is the rule. Even in the National Con- 
gress, although the average of ability and strength is much 
higher than the public seems to suppose, comparatively few 
lawyers of the first order make their appearance. The ques- 
tions involved in the development of the law are seldom 
adapted to interest an audience in political discussion. The 
real consideration and discussion and the mature conclusions 
worthy to be followed must be among the practitioners, the 
judges, the teachers of the law. The fitness of a people for 
seK-government is measured by their capacity to set up and 
maintain institutions through which government can be 



542 ADMINISTRATION OF JUSTICE 

carried on effectively, and responsibly. That rule applies to 
all large bodies of free agents having a common purpose. It 
applies to the one hundred and fourteen thousand lawyers 
of the United States. We must have institutions through 
which our duty can be done if it is to be done. In response 
to that necessity came the Associations of the Bar — the six 
hundred local and state associations and this great national 
organization. Here is at hand an institution for the pubhc 
service of the profession of the law. To enlarge its member- 
ship, to improve its procedure, to increase its scope and eJ0S- 
cacy, to strengthen its authority and its appeal in the real 
life of our time — these are steps by which the lawyers of 
all the states may rise to the high level of patriotic duty and 
a dignity of service worthy of a true American Bar. 



INDEX 



INDEX 



Abrahams, Emanuel, Illinois politi- 
cian, 299 f. 

Absolutism, democratic and monarchical, 
113. 

Adams, John, President, 403, 527, 

Adams county, Ohio, purchase of votes 
in, 271. 

Adirondacks, the, 204. 

Administrative law, development of, 
534 f. 

Aislabie, English minister, 62. 

Albany, 53, 148, 208, 218, 220, 221, 227, 
234, 240, 247. 

Alger, Russell Alexander, American gen- 
eral. Secretary of War and Senator, 503. 

Alva, Duke of, Spanish general, 139. 

Anglo-Saxon race, contributions of the, 
to the political development of civiliza- 
tion, 92, 98-102, 112, 425, 513. 

Argentina, 43, 44, 348. 

Arizona, constitution of, and the recall of 
judges, 387-404. 

Arthur, Chester Alan, President, 201, 202, 
203. 

Asbury African Church, the, at New 
York, 65. 

Association, power of, 39 f. 

Athens, 13. 

Atlantic and Great Western Railroad, 
the, 67. 

Australia, 63. 

Australian ballot, the, 69. 

Austria-Himgary, 32, 336; ultimatum to 
Servia, 519. 

Bailey, Joseph W., American senator, 

293, 319. 
Balkan War, the, 354. 
Baltimore, 366. 
Banking and currency bill, address on 

the, 323-359. 



Bank of Commerce, the, in New York, 

343 f. 
Bank of England, the, 339. 
Bank of France, the, 339. 
Barneveld, John of, Dutch patriot, 139. 
Beardsley, Samuel, American lawyer, 508. 
Beckemeyer, Illinois politician, 303, 304, 

309, 311, 315. 
Belgium, 170. 
Belknap, William Worth, American 

general and Secretary of War, 64. 
Bill of Rights, the, 88, 99, 170, 423. 
Black Horse Cavah-y, the, 187, 188, 189. 
Bluntschli, Johann Kaspar, publicist, 93. 
Bockes, New York assemblyman, 194. 
Bolivar, Simon, South American patriot, 

44 f. 
Boston, 366. 

Boston Massacre, the, 403. 
Brackett, New York state senator, 191, 

195 f., 197, 199. 
Bristol, England, 94. 
Bristow, Joseph Little, American sena- 
tor, 285, 287. 
British Constitution, the, 82, 509. 
Broderick, Illinois poUtician, 303, 311, 

312 fiF., 315. 
Brooklyn, 126. 
Browne, Lee O'Neil, Illinois politician, 

295-311, 315 S., 320. 
Bryce, James, now Lord Bryce, British 

publicist and diplomat, 22, 200. 
Budget, the, in New York, 211, 217 f., 

223, 234 f., 241. 
BufiFalo, New York, 126. 
Bullion Report, the, 346. 
Burgoyne, British general, 63. 
Burke, Edmund, 22, 94. 
Burr, Aaron, 64, 365. 
Burton, Theodore E., American senator, 

371. 



546 



546 



INDEX 



Business men and the Convention of 
1915, address on, 155-162. 

Cade, Jack, 8, 479, 497. 

California, 387, 436 f . 

Campaign funds, 17 f . 

Canada, 63, 339, 348, 371, 513. 

Carter, Thomas Henry, American sena- 
tor, 264. 

Cases: Barbier v. Connolly, 460; Cald- 
well, 318; Clark, 318 f.; Coyle, 389f.; 
Fletcher v. Peck, 459; Hilton v. 
Guyot, 421 f.; Ives v. South Buffalo 
Ry. Co., 475; Senator Lorimer, 291- 
321; Marbury v. Madison, 108 f., 457; 
Paul V. Virginia, 376; Payne, 318. 

Cato, 434. 

Central America, 423, 427, 462. 

Chambers, Joseph, California judge, 395 f. 

Charles I, king of England (1625-1649), 
139. 

Charles 11, king of England (1660-1685), 
61. 

Chicago, 304, 306, 311, 366. 

Chicago and Alton Railroad, the, 67. 

Chicago, Milwaukee, & St. Paul Rail- 
road, the, 351. 

Chicago Tribune, charges against Senator 
Lorimer by, 292-295. 

Chile, 44. 

Choate, Joseph Hodges, American lawyer 
anddiplomat,120,155,159,506,507,508. 

Cicero, 527. 

Civil service, address on the, 145 f. 

Civil War, the, 105, 263, 365, 462, 518. 

Clark, Illinois politician, 317. 

Claji;on, Henry DeLamar, American 
congressman, 467, 468. 

Clayton-Bulwer Treaty, the (1850), 384. 

Cleveland, Grover, President, 356, 358 f. 

Code lawyers, 180, 435, 469. 

Coke, Lord, 419, 421, 479. 

Collective bargaining, 81. 

College of Physicians and Surgeons, the, 
at New York, 65. 

Colombia, 44; Marroquin's usurpation 
in, 427 f. 



Columbia College, 65. 

Committee of Thirty, the, 195 S. 

Commime, the, 8, 84. 

Concord, Massachusetts, 397. 

Concord Bridge, 397, 515. 

Congress, American, average of ability 
in, 541; power of, limited by the Con- 
stitution, 100, 107. 

Conkling, Roscoe, American senator, 
201, 202. 

Connecticut, 181 f., 417, 533. 

Conservation of National Resources, 164; 
conferences on, 371. 

Constitution, the American, 14, 79, 98- 
117, 363; proposed amendment to, 
256-289. 

Constitutional Conventions of New 
York, 1894, 1915, 119-244. 

Constitutional guarantees, provision for 
the suspension of, 114 f. 

Continental Congress, the, 63. 

Continental Government, the, 14. 

Cook county, Illinois, 302, 306. 

Cornell, Ezra, founder of Cornell Univer- 
sity, 201, 202. 

Corporations, political contributions by, 
143 f. 

Corpus Juris Civilis, American, pro- 
posed, 531. 

Corrupt Practices Act, the, in England, 
142. 

Court of Appeals, the New York, 125- 
134. 

Court of Commerce, the, 445. 

Craggs, father and son, English minis- 
ters, 62. 

CrMit Mobilier, the, 64, 205. 

Crelly, John, bail of, 395 f . 

Cuba, 417, 420, 424, 504, 505. 

Cimamins, Albert Baird, American sena- 
tor, 326. 

Danton, French revolutionist, 403. 
Da\-is, George Whitefield, American 

general, 505. 
Declaration of Independence, the, 63, 83, 

88, 98, 99, 100, 112, 167, 170, 504, 514. 



INDEX 



547 



Declaration oJP the Rights of Man, the, 99. 

Delaware, 366. 

Delaware and Hudson RaUroad, the, 189. 

Delos, Confederacy of, 13. 

Democratic party, the, 31, 198, 199, 

210 f., 222 f., 241 ff., 296-303, 325, 340, 

357 f., 359. 
Deneen, Charles Samuel, governor of 

DHnois, 295. 
Denio, Hiram, American lawyer, 508. 
Dependence, increasing, of men upon 

each other, 4 f., 16, 80 f., 160, 164, 250, 

267, 366 f., 448 f., 533, 539. 
De Seze, French lawyer, 403, 527. 
Dictatorship, 260, 427. 
Dodge. William Earl, 2. 
Donohue, Illinois politician, 300 f. 
Drafting bureaus, legislative, value of, 

489 f. 

Economic Club of New York, address 
before (October 25, 1915), 227-244. 

Education, 16 f. 

Egypt, 178, 434. 

Egyptians, the, 490. 

Eisner, New York assemblyman, 194. 

Elastic currency, defined, 335, 340 f . 

EUot, Charles W., President Emeritus of 
Harvard University, 21 f . 

Employer's Liability Act, the federal, 

115 f. 

England, 8, 32, 47, 61 S., 64, 69, 87 f., 92, 
98 f., 100, 123, 178, 230, 316, 336, 339, 
421, 434, 442, 494, 495, 509, 517. See 
Great Britain. 

English, lUinois politician, 301. 

Erie Raiboad, the, 67, 189. 

Erskine, Thomas, British orator, lawyer. 
Lord Chancellor, 509, 527. 

Eiu-opean war, the, 519 f. 

Evarts, William Maxwell, American 
lawyer, 508. 

Evidence, rules of, 495 f. 

Exchange, foreign, 352 f. 

Farewell Address, Washington's, quoted, 

116 f. 



Farmers, independence of, 4. 

Federal election laws, the, of 1870 and 

1871, 68, 280 f. 
Federalist, The, 109, 363, 458. 
Federal Reserve Board, the, 323, 324, 

326, 330, 332, 336, 337, 357 S., 473, 

535. 
Federal Trade Commission, the, 535. 
Fenton, Reuben E., American governor 

and senator, 201, 202. 
Field, David Dudley, American jurist, 

178, 438, 469, 494, 508. 
Field, Marshall, American merchant, 

337, 
Field, Stephen Johnson, Associate jus- 
tice, U. S. Supreme Court, 436 f. 
Field Code of procedure, the, 432, 434, 

491, 494. 
Fielding, Henry, English novelist, 62. 
Filipinos, the, 427. 
Florida, 64. 
Ford, Henry, American manufacturer, 

337. 
Fourteenth Amendment, the, 90, 101, 

460. 
France, 8, 14, 32, 84, 87, 336, 339, 421, 

422, 423. 
French Revolution, the, 8. 

Gallinger, Jacob H., American senator, 

361, 362. 
Gamble, Robert Jackson, American 

senator, 307 f., 312. 
Game laws, 219. 
German Bank, the, 339. 
Germany. 14, 32, 87, 336, 339, 421. 
Gold, exports of, 352 f. 
Gompers, Samuel, 224. 
Governors, address at the conference of, 

371 ff. 
Grant, Ulysses S., President, 64, 145, 

356, 358. 
Great Britain, 14, 47, 82, 384 f., 469, 536. 

See England. 
Great Lakes, the, 207, 364. 
Greece, 170. 
Greek republics, the, 92, 98. 



548 



INDEX 



Greeks, the, 13. 

Gresham's law, 355. 

Griffin, Illinois politician, 302. 

Groves, Dlinois politician, 301, 303, 310, 

311. 
Guam, 420. 
Guy, English minister, 62. 

Habeas Corpus Act, the, 99, 101, 170, 425. 
Hadley, Arthur T., President of Yale 

University, 22. 
Hague Convention, the, for the Pacific 

Settlement of International Disputes, 

437. 
Halstead, Murat, 22. 
Hamilton, Alexander, 29, 109, 251, 402, 

458, 508. 
Hamilton College, 65. 
Hay, John, American statesman, 503. 
Hayes, Rutherford B., President, 45 f. 
Highwaymen, in England, 63. 
HiU, David Bennett, American governor 

and senator, 120, 201. 
Hinman, New York assembljinan, 194. 
Holland, 421. 
Holstlaw, Illinois poUtician, 295, 303, 

311-314, 315. 
Home rule bills, in New York, 211, 212, 

218 f., 223, 235 f., 241 f. 
Hopkins, Albert J., American senator, 

296. 
Hortensius, Roman orator, 527. 
Hughes, Charles Evans, American gov- 
ernor and jurist, 192,193, 194, 198, 199. 

Iberian Peninsula, the, 8. 

Dlinois, 123; case of Senator Lorimer, 

291-321. 
Immigrants, must be taught the spirit of 

American institutions, 73 S., 515 f . 
Impeachment, address on, 173 ff. 
Individualism, 79, 160, 539. 
Individual liberty, 91, 92, 511-518, 540. 
Inequality, right of, 10. 
Inflation, psychology of, 336 ff. 
Initiative, the, 90, 93, 94, 211, 239, 253, 

269, 270. 



Inland Waterways Commission, the, 
371. 

Inquisition, the, 504. 

Interstate Commerce Commission, the, 

67, 437, 445. 472 f., 535. 
Invisible government, address on, 191- 

206. 
Iowa, 123, 264. 
Italian republics, the, 92, 170. 
Italy, 14, 32, 336. 
luka, Illinois. 295, 311, 312. 

' Jack pot,' the, in the lUinois legislature, 

307 f., 310. 
Jackson, Andrew, 51, 81. 
Jacquerie, the, 8. 
Jamshyd, 15. 
Japan, 12. 
Jay, John, American statesman and 

jurist, 508. 
Jefferson, Thomas, President, 29, 377, 

402, 514. 
John, king of England (1199-1216), 

505. 
Judicature Act of 1873, the, in England, 

178, 230, 434, 469, 494. 
Judicial decisions and public feeling, 

address on, 445-462. 
Judiciary, address on the, 125-136. 
Jm-y, trial by, 121 ff. 
Justice, power of, 403, 464 f . 

Kansas, 387. 

Kent, James, American jurist, 508. 

Land thieves, 67 f . 

LassaUe, Ferdinand, German socialist, 
418. 

Latin America, 8, 13, 32, 43; Spanish- 
American dictatorships, 84. 

Law's delays, the, 215, 229 f., 268, 480; 
address on, 178-183. 

Lawyers, American, address on the duties 
of, 413-430; fearlessness of, 464, 482; 
as criticised by laymen, 479-497; 
loyal to clients, 483; the lawyer of 
today, 503-509; individual liberty 



INDEX 



549 



and the responsibility of the bar, 511- 
518; public service by the bar, 519- 
542; superfluous lawyers drags upon 
the community, 523 f. 

Lecky, WiUiam Edward Hartpole, Eng- 
lish historian, 61 f., 76. 

Lee, Charles, American general, 63. 

Legislative reference libraries, value of, 
489. 

Legislatures, decreased power of, 96 f., 
110; declinmg reputation of, 208, 233 f. 

Libby, Isaac, bail of, 395 f . 

Liberal constructionists, 28 f. 

Liberty, 381, 464, 505; how to be pre- 
served, 514. 

Lieber, Francis, 87. 

Lima, 44. 

Limitations of oflBcial power, observance 
of, essential, 426-429. 

Lincoln, Abraham, President, 106, 409, 
462. 

Link, Illinois politician, 303, 304, 309, 
311, 315, 317. 

Lippitt, Henry Frederick, American sen- 
ator, 352. 

Local self-government of the states, ad- 
dress on the preservation of, 363-378. 

London, 62; exchange on, 352. 

Lorimer, William, American senator, 
291-321. 

Los Angeles, California, 395 f . 

Lotteries in New York State, 65. 

Louis XIV, king of France (1643-1715), 
18. 

Louis XVI, king of France (1774-1792), 
403. 

Louisiana, 421. 

Lower Canada, 421. 

Loyalty, the noblest and most indispens- 
able of virtues, 463, 483. 

Lusitania, the, 170. 

Macaulay, Lord, 14 f. 
Macedonians, the, 13. 
McKinley, William, President, 356 f., 

359, 503 f . 
Madison, James, President, 402. 



Magna Charta, 88, 99, 100, 158, 458, 505, 
509, 513; address on, 169 ff. 

Malesherbes, French statesman, 403, 
527. 

Marat, French revolutionist, 403. 

Marcy, William Learned, American sena- 
tor, 51, 54, 81. 

Marroquin, Jose Manuel, usurpation of, 
in Colombia, 427 f . 

Marshall, John, Chief Justice, U. S. Su- 
preme Court, 108 f., 252, 403, 457, 459. 

Marshall, Louis, American lawyer, 204. 

Marx, Karl, German socialist, 418. 

Maryland, 366. 

Marysville, California, 436 f . 

Massachusetts, 397, 525 f. 

Massachusetts Body of Liberties, the, 
99, 170. 

Medes and Persians, laws of the, 178, 418, 
434. 

Mexico, 159, 371, 384, 407, 522. 

Meyers, Illinois politician, 302, 303, 310, 
311, 315. 

Michigan, 123. 

Mob, tyranny of the, 7 f . 

Monetary Commission, the, 340 ff., 346. 

Money, political use of, address on, 141- 
144. 

Montana, 264. 

Montesquieu, 109, 458. 

Morley, John, now Lord Morley, British 
publicist and statesman, 22, 61. 

Municipal government, improvement of, 
in America, 200 f . 

Murray, R. L., bail of, 395 f. 

Mysteries of the law, the, 134, 178, 229 f., 
433 f. 

Napoleon, 99. 

Napoleonic wars, the, 364. 

National Bank Act, the, 239. 

National Reserve Act, the, 239. 

Nevada, 387. 

New England town meetings, 269. 

Newfoundland, 371. 

New Haven Railroad, the, 351. 

New Jersey, 254, 366. 



550 



INDEX 



New Mexico, 388. 

New Orleans, 366. 

Newport, 53 f. 

New York, city, 53 f ., 65, 125 f., 280 f., 
353 f., 366; address before the Mer- 
chants' Association of, 155-162. 

New York, harbor of, 254. 

New York, state, 25, 51, 65, 123, 366, 
468 f., 490; constitutional conventions 
of 1894 and 1915, 119-244; courts of, 
125-136; address before the Chamber 
of Commerce of, 379-386. 

New York Central Railroad, the, 189. 

New Zealander, Macaulay's, 14. 

Nome, Alaska, 379. 

Norman Conquest, the, 92, 98. 

Normans, the, 99. 

North, Lord, English statesman, 61. 

Nott, Eliphalet, President of Union 
College, American educator, 65. 

O'Brien, Morgan Joseph, American 

jurist, 163. 
Ochlocracy, 260. 
O'Connor, Charles, American lawyer, 

438, 441, 508. 
Oklahoma, 389. 

Oleomargarine Act, the, 250, 367. 
OUgarchy, 260. 

Oneida county. New York, 508. 
Oregon, 387. 

Pacific railroads, 29. 

Panama, 385. 

Panama Canal, the, 384 f . 

Panama, Isthmus of, 385. 

Parcels post, the, 249. 

Paris, 5, 8; Custom of, 429; Treaty of 
(1898), 420. 

Parker, Alton Brooks, American jurist, 
467, 470. 

Parliament, 47, 346. 

Parties, political, function of, in govern- 
ment, 20-37, 81 f . 

Patronage, use of, 203 ff., 208, 216. 

Paynter, Thomas H., American senator, 
294. 



Peloponnesian Confederacy, the, 13. 
Pennsylvania, 5, 51, 366. 
Percy, LeRoy, American senator, 283. 
Permanent Court of Arbitration, the, at 

The Hague, 437 f . 
Persian invasions, the, 13. 
Peru, 44. 

Petition of Rights, the, 99, 170. 
Philadelphia, 366. 
Phihp II, king of Spain (1556-1598), 

139, 418. 504. 
Philippines, the, 420, 504, 505. 
Phillips, Jesse, 192. 
Pitt, WUham, the younger, English 

statesman, 61 f. 
Piatt, Thomas CoUier, American senator, 

201, 202. 
Poland, 14. 
Pohtical parties, as agencies of the 

governing body, 20-37; duties of the 

citizen as member of a party, 38-57; 

development of parties, 81 f. 
Politicians, character of, 35. 
Pomeroy, John Norton, American lawyer, 

512. 
Pompeii, 509. 
Popidar review of judicial decisions, the, 

90, 111 f. 
Porto Rico, 417, 420, 504, 505. 
Press, freedom of the, 112. 
Procedure, legal, reform of, 178-183, 216, 

219, 230 f., 242, 431-443, 447, 490- 

496; address on reforms in judicial 

procedure, 467-477. 
Productive capacity of mankind, increase 

in the, 70, 272. 
Pure Food law, the, 250, 367. 

Railroads, indebtedness of, 349 f., 351. 
RecaU of Judges, the, 90, 110 f., 211, 239, 

445; addresses on the recall of judges, 

387-404, 405-410. 
Red Terror, the, 8. 
Referendum, compulsory, the, 90, 93, 94, 

211, 239, 253, 269, 270. 
Reform bill of 1832, the, 8, 69. 
Reign of Terror, the, in France, 99. 



INDEX 



551 



Religion, freedom of, 75. 
Representative government, 91, 92, 227- 

244. 253 f., 269-273. 
Republican Club of New York, address 

before (October 18, 1915), 213-225. 
Republican party, the, 31, 148, 193-197, 

199, 210 f.,214, 222 f ., 241 ff., 247, 296, 

340. 359, 361, 406. 
Responsibility and power, relationship 

between, 165, 196 f., 232 f . 
Revolution, English, of 1688, 61. 
Rights, unalienable. 83. 99, 112 f., 167 f., 

170, 458. 504, 514. 
* Ripper ' bills, so-called, in New York, 

221. 
Robbers, in London, 62. 
Robespierre, French revolutionist, 403. 
Rochester, New York, 442. 
Roman consuls. 114. 
Roman empire, the, 8, 12. 
Roman republic, the, 92, 98. 
Romans, the, 13, 443. 
Rome, 99, 114. 170. 
Roosevelt, Theodore, President, 193, 

461, 503. 
Roumania, 8. 
Rousseau, 93. 
Rule of law, the, 530. 
Russia, 8. 

St. Louis, 303, 304, 305, 306. 366. 

Sanclemente, M. A., Colombian presi- 
dent, 427 f. 

San Francisco, 366. 

San Martin, Jose de, South American 
patriot, 43 ff. 

Saratoga, 148, 194 f. 

Second Empire, the, 99. 

Sectarian education, address on, 137- 
140. 

Self-government, address on the spirit of, 
379-386. 

Self-restraint, the supreme necessity and 
virtue of a democracy, 117, 375, 399 ff., 
406 f., 637. 

Senators, direct election of. 253 f.; ad- 
dresses on, 257-283, 285-289. 



Senatorship. address in acceptance of the, 

247-255. 
Servia, 519. 

Shaw, lUinois politician, 301 f. 
Shepard, Jack, 63. 
Short ballot, the, 96, 210, 223, 233, 241, 

443; address on the short ballot 

amendment. 191-206. 
Shurtleff, Illinois politician, 298. 
Silver Purchase Act, the, 356. 
Slavery, 28. 29. 31. 105, 406. 
Small causes, importance of, 132 f., 

135 f., 185 f. 
Smith. A. E., 197 f. 
Smollett, Tobias, English novelist, 62. 
Smugglers, in England, 63. 
Socialism, 79. 
SociaUsts, 10. 73 f. 

Sohm, Rudolph, German publicist, 101. 
Solidarity, national, importance of, 522. 
South America, 8, 423, 427 f., 462. 
Southmayd, Charles F., American law- 
yer, 487. 
South Sea Bill, the, 62. 
Spain, 44 f., 64, 139, 418, 420, 421, 423 f., 

426, 504. 
Sparta, 13. 

Speech, freedom of. 112. 
Spencer. Joshua. American lawyer, 508. 
Springfield, Illmois, 297, 298, 301, 302, 

304. 
Stanhope, Charles, English minister, 

62. 
Stanton, Edwin M., Secretary of War, 

22. 
State government, 537 f.; dissatisfaction 

with the workings of, 227 f., 267 f.; 

perversion of state constitutions, 488; 

address on the preservation of the local 

self-government of the states, 363-370; 

address on the importance of seeking 

reform through state governments, 

375-378. 
Statute of Treasons, the, 170. 
Statutory rights, 179 f., 230, 431, 435, 

469, 493. 
Stockbridge, Massachusetts, 487. 



55^ 



INDEX 



Street cleaning department, the, in New 

York, 53 f . 
Strict constructionists, 28 f . 
' Strike ' biUs, 187, 188, 189. 
Strikes, 5. 

Stringer, Illinois politician, 296. 
Stuarts, the, 99. 
Sumner, William Graham, American 

political economist, 355. 
Sunderland, English minister, 62. 
Supreme Court, the, of the United States, 

132, 403, 422, 460, 471-477, 485. 
Sutherland, George, American senator, 

282. 
Swanson, Claude Augustus, American 

senator, 330. 

Taft, William Howard, President, 193, 
387, 467, 499, 505. 

Tanner, Frederick C, 194. 

Tariff, the, 27 f., 347, 348. 

Terrill, Illinois poUtician, 302, 303, 310, 
311. 

Terror, Reign of, 99. 

Throop, Montgomery, 177, 178, 434. 

TUden, Samuel Jones, American gover- 
nor and political leader, 45 f . 

Tippet, Uliuois politician, 297. 

Tourists, expenditure of, 348. 

Trade balances, visible and invisible, 
347 ff. 

Trevor, Sir John, English politician, 
61 f. 

Turpin, Dick, 63. 

Tweed, William Marcy, American politi- 
cian, 187. 

Tyler, Wat, 8. 

Union College, 65. 

Union Pacific Railroad, the, 67. 



Valley Forge, 64. 

Van Buren, Martin, President, 51. 

Venezuela, 44. 

Virginia, 366. 

Virginia Bill of Rights, the, 99. 

Wadsworth, James Wolcott, Jr., Ameri- 
can senator, 192, 193, 194, 198, 199. 

Wallace, William James, American 
jurist, 422, n. 1. 

Walpole, Sir Robert, English statesman 
61, 68, 205. 

Wanamaker, John, American merchant, 
337. 

Waring, Colonel George E., 53 f. 

Washington, George, President, 45, 63, 
116 f., 402. 

Wealth, new, adjustment in the division 
of, 70-73, 272, 533. 

Westchester county. New York, 366. 

"VSTiig party, the, 31. 

White, Charles A., Illinois politician, 
295, 303, 304, 305, 306, 309, 310, 311, 
315, 316, 317. 

Wilcox, Wniiam E., 227. 

Wild, Jonathan, 63. 

Wilkinson, James, American general, 64. 

William the Silent, 139. 

Wilson, Illmois politician, 304, 305, 307, 
308, 315. 

Wisconsin, 490. 

Witenagemot, the, 92. 

Wood, Leonard, American general and 
administrator, 505. 

Woodruff, Timothy L., American politi- 
cian, 146. 

Works, John D., American senator, 396. 

Worship, freedom of, 112, 393. 

Yarboroughs, the, 295. 



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